Greer v. United States, __S.Ct.__, 2021 WL 2405146 (2021) Short story: A defendant convicted of being a felon-in-possession of a firearm under 18 U.S.C. § 922(g) after the Supreme Court’s 2019 decision in Rehaif v. United States is not entitled to a new trial or plea hearing unless he “makes a sufficient argument or representation on appeal that he would have presented evidence at trial that he did not in fact know he was a felon.” Longer story: In 2019’s Rehaif, the Supreme Court held that a felon-in-possession conviction requires not only the defendant’s knowledge that he possessed a gun, but also that he knew he had the legal status of a convicted felon. Because Rehaif applied to every federal felon-in-possession conviction not yet final as of the date of that decision, the question became whether some or all of those cases needed to be sent back for new pleas or trials—i.e. would it have made any difference in the result had the parties and court known at the time that the government was required to prove knowledge of felon status? Appellate courts varied in handling such challenges, from looking beyond the trial record to the larger “district court” record in a search for evidence demonstrating that the defendant knew of his felon status (like a PSR or the indictment), to a “structural error” approach that essentially guarantees a new hearing in all cases. (All the justices in Greer agreed that the structural error route was a no-go). Kavanaugh wrote for the Court which held that neither Gregory Greer nor Michael Andrew Gary (companion case) had carried their burden of showing a “reasonable probability” that they would not have been convicted had the rule of Rehaif been observed in their cases. Kavanaugh tried to employ what he considered a “common sense” approach: “if a defendant was in fact a felon, it will be difficult for him to carry the burden on plain-error review of showing a ‘reasonable probability’ that, but for the Rehaif error, the outcome of the district court proceedings would have been different.” Both Greer and Gary had been convicted of multiple offenses qualifying as felonies under Section 922(g), which by itself constitutes “substantial evidence” that they knew they were felons. Moreover, neither of them argued or made a representation on appeal that they would have presented evidence at trial that they did not, in fact, realize that they were felons. Sotomayor joined the court in Greer but dissented in Gary, saying that she would have remanded the latter case to allow the lower courts to rule in the first instance whether Gary satisfied the majority’s articulated standard. She also listed several reasons a defendant might not know a prior conviction was a felony for federal purposes. At the risk of being overly-lengthy, I’m including here the practice pointers from the Sentencing Resource Counsel, which might be useful for you to preserve the issues well: 1. Supplement your record on appeal. Citing Federal Rules of Appellate Procedure 10(e), the Supreme Court invites appellate defenders to supplement the appellate record with new evidence to support their plain error arguments on appeal. See, e.g., Slip Op. at 5, 10, Sotomayor at 6 n. 1. That’s right. Perhaps as consolation for saying courts could look at the whole record to answer an evidentiary question that was never litigated below, the Court invites us to submit new evidence on appeal that bears on that question. Justice Sotomayor suggests that might include corrections to the PSR that did not matter before Rehaif, evidence of mental illness, or the fact that a prior court erroneously described the consequences of conviction. Query whether the government also gets to submit evidence. But note: I read nothing here to suggest the government gets to submit extra-record evidence in the normal course of appeals to shore up its undeveloped evidentiary record. 2. Object, object, object. The moral of both these stories is, FRCrP Rule 51, 52 require us to object to things even when it feels like we’re just howling at the moon. I mean, we need preserve things we have long lost hope will ever prevail. Think: felons, et al. have 2nd amendment right to bear arms; 922 firearm transported in interstate commerce requirement is insufficient to support federal jurisdiction; charging someone with felon in possession/domestic violence misdemeanor violates double jeopardy because the prior conviction is a lesser included offense; charging someone federally after state conviction/acquittal for same conduct violates double jeopardy; Almendarez-Torres should be overruled; Whren should be overruled; our client must know drug-type/quantity to trigger mandatory minimum; consideration of acquitted conduct at sentencing is unconstitutional after Rita; you get the picture. Not only has the Supreme Court told us we need to do this to protect our clients’ rights, but if we do our jobs well enough, and especially before judges who sit on the Rules Committee, maybe we can get them to amend those rules! If you need other ideas, please see NAFD’s amicus brief in Gary, which details what will happen if the SC requires us to make objections even against a solid wall of circuit authority. Terry v. United States, __F.3d__, 2021 WL 2405145 (2021) Short story: People convicted of certain low-level crack-cocaine offenses are not eligible for sentencing reductions under the First Step Act. Longer story: This one is only saved by the fact that there’s some legislative momentum and hopefully Sotomayor’s vision in concurrence will become a reality (DOJ apparently agrees with the pending legislation, aka the EQUAL Act). The cocaine/crack disparity should not have existed and getting the Court and Congress to right the wrongs of the racist War on Drugs is like pulling teeth. My god. Justice Thomas wrote for everyone except Sotomayor who concurred (and she accused Thomas and the rest of the Court for whitewashing the realities of the disparities--“Black people bore the brunt of this disparity”). Tarahrick Terry was arrested in Florida for carrying just under 4 grams of crack cocaine. This was in 2008, when the law treated offenses involving crack much more harshly than those involving powder cocaine. 21 USC § 841 created three tiers. Tier 1 imposed a 10-year mandatory minimum sentence for offenses involving at least 50 grams of crack or 5 kilograms of powder. Tier 2 imposed a 5-year mandatory minimum for offenses involving at least 5 grams of crack or 500 grams of powder. Tier 3 penalized offenses involving an unspecified amount of cocaine and did not include a mandatory minimum. Terry was convicted under Tier 3 and was sentenced to more than 15 years in prison. Two years later, Congress passed the Fair Sentencing Act, which reduced the sentencing disparity between crack and powder cocaine. And in 2018, Congress passed the First Step Act, which made certain provisions of the Fair Sentencing Act retroactive and allowed some people convicted under the old regime to seek reduced sentences. Terry argued that he was entitled under the First Step Act to seek a sentencing reduction. The Supreme Court disagreed. Although Tier 1 and Tier 2 (841(b)(1)(A) & (B)) are “covered offenses” under the First Step Act, Tier 3 offenses are not covered (841(b)(1)(C)). Thomas sticks to a plain-language-statutory-construction argument and concludes: the First Step Act defines “covered offense” as “a violation of a Federal criminal statute, the statutory penalties for which were modified by” the Fair Sentencing Act. The Fair Sentencing Act, in turn, altered the amounts of crack cocaine needed to trigger Tier 1 and Tier 2, but it left the language of Tier 3 unchanged. As a result of the “clear text” of the statute, Terry’s Tier 3 conviction is not eligible for resentencing. In Sotomayor’s concurrence, she called on Congress to pass a new law providing a chance for sentencing reductions to people convicted under Tier 3. She noted that the bipartisan sponsors of the First Step Act had urged the court to interpret the law to provide broad retroactive relief to Terry and potentially hundreds of similarly situated prisoners who were convicted of low-level crack offenses. United States v. Martinez, __F.3d__, 2021 WL 2409396 (10th Cir. 2021) Aric and Theo did what they could, but Judge Kelly and co. affirm the district court's imposition of a 27-month sentence for his burglary conviction under the Indian Major Crimes Act Two main takeaways: (1) Under the Sentencing Reform Act and the IMCA defendants may be sentenced to probation, a fine, or imprisonment pursuant to 18 U.S.C. § 3551(b). But district courts may not assimilate a state provision permitting a conditional discharge. (2) A hammer (or other instrumentality) can constitute a dangerous weapon under USSG §§1B1.1, n.1(E) and 2B2.1 even if not used as a weapon during the burglary offense. Possession of the hammer was enough to sustain the 2-level sentence enhancement.

United States v. Jean-Pierre, 2021 WL 2426203 (10th Cir. June 15, 2021) (CO): Jean Pierre appealed his convictions for conspiracy to commit securities fraud and securities fraud. He argued the district court incorrectly admitted evidence that he had previously used his niece’s signature without her permission to submit attorney letter agreements to a stock trading website. He also argued that the securities fraud convictions should be reversed because the court refused to give his requested instruction which explained the government’s burden to prove a specific factual theory. The panel rejected both arguments. Regarding evidence of Jean-Pierre’s pre-offense use of his niece’s signature, the panel said if the court did err in letting the jury hear that evidence, its error was harmless. Before the government introduced the series of pre-offense letters, it questioned a stock market representative, Jean-Pierre’s niece and presented another group of attorney letter agreements that were part of the charged offense conduct. The market representative testified Jean-Pierre was banned from submitted attorney letters and his niece said she did not work in securities, never signed any of the letters, and Jean-Pierre had access to her signature. The panel said the inference of fraud came from that evidence, not the pre-offense letters and Jean-Pierre did not object to any of it. Thus, any assumed error in admitting the pre-offense letters was harmless. Regarding the Jean-Pierre’s proposed instruction, the panel dismissed the government’s argument that he had not preserved the issue for review. The panel detailed exactly how he had: First, he submitted an instruction that explained the government was required to prove the securities at issue were not subject to a registration exemption. With the proposed instruction, Jean-Pierre detailed the reason for including such language: he could not have deceived investors if the securities were exempt from registration. Second, after the court rejected this additional language, it asked whether there were any objections to the final version of its instructions. Jean-Pierre said he disagreed with the statement in the instructions that the exemption instruction was his proposed instruction. He said the court had not adopted his entire instruction and reiterated the court should add the language on the government’s burden. He again asked that the jury be told it must find beyond a reasonable doubt that no exception excused the securities registration requirement. According to Fed.R.Crim.P. 30, the panel said, Jean-Pierre did enough to preserve the issue. That rule requires a party who objects to any portion of the instructions or to a failure to give an instruction, to tell the court of the specific objection and the grounds for it before the jury begins deliberations. Although a mere tendering of jury instructions, without further objections, will not preserve the issue, that is not what happened here. The panel then reviewed the issue de novo to see if the court’s instructions accurately stated the governing law and provided the jury with an accurate understanding of the relevant legal standards and factual issues. Jean-Pierre argued that the government’s securities fraud theory was aimed at proving he made a materially false statement in representing that the securities offered and sold were exempt from registration. He said the jury should have been instructed that the government had to prove beyond a reasonable doubt that they were not exempt. Not so, said the panel. There are 4 means by which one can commit securities fraud, making an untrue material statement is just one way. The jury was told the government had to prove any of the four means beyond a reasonable doubt. The panel held there is “no requirement that the district court further instruct the jury that the government’s burden applies to a specific means of satisfying that element.” United States v. Xiong, 2021 WL 2430790 (10th Cir. June 15, 2021) (OK): Xiong argued that the district court’s failure to instruct the jury on constructive possession violated his 6th Amendment right to a jury trial. Reviewing for plain error, the panel held Xiong did not show there was a reasonable probability the outcome would have been different. Admittedly, Xiong was not in physical possession of the firearm at issue. And the jury was not instructed, as it should have been, that when one is not in “physical custody” of a firearm, the government has to prove that person still has the power and intent to exercise control over it. Here, the evidence demonstrated that Xiong did have the power and intent to exercise that control. The shotgun was on the floor behind the driver’s seat with the grip facing the front passenger seat where Xiong sat. He could have easily grabbed the loaded shotgun from there. The driver did not have the same access – he would have had to get out of the car and open the back door or “twist around” and “lift the barrel” to get it. The panel concluded that there was “only one plausible conclusion: Though lacking physical custody of the short-barreled shotgun, Defendant retained the power and intent to exercise control over it.” Thus, the outcome would have been the same even if the jury had been properly instructed. United States v. Juranek, 2021 WL 2434009 (10th Cir. June 25, 2021) (CO) (unpub): the panel vacates the sentence and remands to the district court to reconsider its decision that Colorado third degree assault is categorically a crime of violence in light of Borden v. U.S. That offense is perpetrated when a person “knowingly or recklessly causes bodily injury to another person.”

United States v. Broadway, 2021 WL 2546657 (10th Cir. June 22, 2021) (CO): the panel holds that a district court addressing a First Step Act motion to reduce a prison term for a drug conviction should look to the minimum drug quantity associated with the accused’s offense of conviction, rather than his underlying conduct, to determine whether the Fair Sentencing Act would have affected his sentence had it been in effect at the time of the offense. Here, the district court did not start with the offense of conviction and lowered guidelines imprisonment range (because the career offender provisions applied), but skipped to the stipulated drug quantities. It refused to reduce Broadway’s prison term because it said he possessed over 280 grams of crack cocaine and so the statutory penalty and guidelines imprisonment range would have been unaffected by the FSA. The panel held this was legal error. Had the district court started with the offense of conviction, which charged Broadway with possessing at least 50 grams, both the statutory penalty and guideline range would have been lowered by the retroactive application of the FSA. The statutory maximum changed from life to 40 years and the base offense level under USSG § 4B1.1(b) would have be lower, resulting in a lower imprisonment range. The panel remanded and ordered the district court to start its deliberation with the correct guideline imprisonment range.

Lange v. California, 20-18, 2021 WL 2557068, at *7 (U.S. June 23, 2021)(Fourth Amendment – hot pursuit and misdemeanors) Short version: Can an officer in hot pursuit of a misdemeanant enter the misdemeanant’s home? Maybe yes, maybe no. It all depends. Long version: Arthur Lange was having a good time; as he was driving along, he was playing his music loud and honking his horn (in what I presume was celebration of said good time). Alas, a California Highway Patrol Officer (a la Ponch and Jon) did not feel this was appropriate behavior for the staid roads of Sonoma. Our CHP officer followed him for a bit, then decided to pull Lange over. (Had to be Jon; Ponch would have been cool with a good time.) But Lange was four-seconds from home. His garage door went up, he went in, and the door began to go down. Our officer stuck his foot in the garage door causing it to go back up (yay for technology! What you never had a garage door close on your foot? Seriously, yay for technology!) and entered the garage. It seems that Mr. Lange was a wee bit drunk. (And by a wee bit I mean over 3 times the legal limit.) He was arrested for DUI (a misdemeanor). Mr. Lange objected to this intrusion into his home. (California did not see the problem). Enter the Supreme Court to answer the burning question: Does the Fourth Amendment always permits an officer to enter a home without a warrant in pursuit of a fleeing misdemeanor suspect? Answer in three parts: 1) Not always! 2) Remember misdemeanors run the gamut from dyeing chicks an artificial color to assault; 3) Ask do exigent circumstances exist? Are you sure? (Is this really about the teal-dyed chick? No?) Fine. Otherwise get a warrant. Notably, Robert’s concurrence (joined by Alito) would create a bright line rule that hot pursuit no-matter the crime is exigent circumstances unless it’s totally unreasonable. Essentially, he reminds us that pretext works and results in discovery of drugs and guns so let officers chase people who run because, after all, why would you run unless you had something to hide? (Thomas’ concurrence primarily reminds us he does not believe in the exclusionary rule and to revel in history. Much as he did in Mahanoy Area School District v. B.L., No. 20-255 (U.S. June 23, 2021) where, as the lone dissenter, he talked about how back in the day, Vermont let a teacher beat a student because he called him old and that was good because it taught that whipper-snapper a lesson. The majority in B.L. believed the cheerleader could use snapchat to drop a few f-bombs even if it was talking about school.).