Federal Appeals blog covering all of the latest criminal decisions from the different federal courts of appeal across the nation.

In 2009, Kurt Harrington was convicted of seven drug offenses. The government filed a notice pursuant to 21 U.S.C. 841 and 851 based on a 2002 felony drug conviction. As a result, Harrington faced a mandatory term of life imprisonment “if death results from the use of substance and violation was committed after prior conviction for felony drug offense.” 21 U.S.C. 841(b)(1)(A). The district court sentenced Harrington to concurrent terms of life in prison on two counts, and 360 months on the five remaining counts. The Eighth Circuit Court of Appeals affirmed Harrington’s convictions in 2010.

In 2014, the Supreme Court decided Burrage v. United States, 571 U.S. 204 (2014). In Burrage, the Supreme Court held that “at least where use of the drug distribution by the defendant is not an independently sufficient case of the victim’s death or serious bodily injury, a defendant cannot be liable under the penalty enhancement provision of 21 U.S.C. 841(b)(1)(C) unless use is a but-for cause of the death or injury.” 571 U.S. at 218-19.

Following the Court’s decision in Burrage, Harrington filed a petition for writ of habeas corpus under 28 U.S.C. 2241, challenging his conviction and sentence. The petition was subsequently denied. However, in 2017, Harrington filed a second 2241 petition citing intervening out-of-circuit authority holding that Burrage is retroactively applicable to cases on collateral review.

The district court dismissed Harrington’s second 2241 petition on initial review without service. The court reasoned that “neither the Supreme Court nor the Sixth Circuit has yet indicated that Burrage is retroactive to cases on collateral review.” As an alternative, the district court also dismissed the petition on the basis that Harrington was not sentenced under the mandatory guidelines that existed prior to United States v. Booker, 543 U.S. 220 (2005).

Harrington appealed to the Sixth Circuit, and argued that Burrage is retroactively applicable on collateral review. The Sixth Circuit held that Harrington did properly petition for relief under 28 U.S.C. 2241, as Harrington met the requirements of the “savings clause.” 28 U.S.C. 2255(e).

In the Sixth Circuit, a petitioner may pass through the savings clause if they are barred from proceeding under section 2255, and “actually innocent.” Wooten v. Cauley, 677 F.3d 303, 307 (6th Cir. 2012).

The Sixth Circuit found that Harrington’s claim is properly construed as one of actual innocence. In Burrage, the Supreme Court referred to the death-results enhancement as “an element that must be submitted to the jury and found beyond a reasonable doubt.” 571 U.S. at 210. Thus, the “death-results” enhancement is not a sentencing enhancement, but rather a statutory element of a crime.

The Sixth Circuit further noted that Harrington’s actual innocence claim may have merit. A petitioner may demonstrate actual innocence by:

(1) the existence of a new interpretation of statutory law, (2) which was issued after the petitioner had a meaningful time to incorporate the new interpretation into his direct appeals or subsequent motions, (3) is retroactive, and (4) applies to the merits of the petition to make it more likely than not that no reasonable juror would have convicted him.

Wooten, 677 F.3d at 307-08.

The court found that the first two prongs were satisfied: Burrage is a new interpretation of 21 U.S.C. 841(b)(1) and decided well after Harrington’s 2009 conviction, his 2010 direct appeal, and the one-year window to file a 2255.

Next, the Sixth Circuit held that Burrage is retroactive:

“Substantive decision that ‘narrow the scope of a criminal statute by interpreting its terms’ apply retroactively to cases on collateral review. Schriro v. Summerlin, 542 U.S. 348, 351 (2004) (citing Bousley v. United States, 523 U.S. 614, 620-621 (1998)). Burrage fits that bill: because but-for causation is a stricter requirement than, for example, the contributing-cause rule rejected in Burrage, see 571 U.S. at 208, some conduct punished by 21 U.S.C. 841(b)(1) pre-Burrage is no longer covered post-Burrage. At least two of our sister circuits to consider the issue have held that Burrage applies retroactively to cases on collateral review. See Santillana v. Upton, 846 F.3d 779, 783-84 (5th Cir. 2017); Krieger v. United States, 842 F.3d 490, 499-500 (7th Cir. 2016).

“For purposes of motions under 2241, it makes no difference that the Supreme Court itself has not held that Burrage applies retroactively. The rule requiring retroactivity to be determined by the Supreme Court comes from Tyler v. Cain, 533 U.S. 656 (2001), a case that interpreted the statutory limitation set forth in 28 U.S.C. 2244(b)(2) on second-or-successive petitions brought by state prisoners under 28 U.S.C. 2254. There is no comparable limitation on petitions filed under 2241.”

The Sixth Circuit found that Harrington met the first three prongs for demonstrating actual innocence. However, the court declined to determine whether Harrington met the fourth prong that “no reasonable juror would have convicted him, because the petition was dismissed at initial review and there was no evidence before the Sixth Circuit.

Accordingly, the Sixth Circuit remanded the issue to the district court to hold an evidentiary hearing.

Judgment of the district court was vacated, and the case remanded for further proceedings.

Harrington v. Ormond, No. 17-6229

JEREMY’S TAKE: This is a great case out of the Sixth Circuit that interprets the savings clause of 28 U.S.C. 2255(e) and retroactivity of Supreme Court decisions. Every circuit has its own savings clause test, and navigating through 2241 proceedings can be extremely complex. If you are seeking assistance with a 2241 petition, please reach out to me at [email protected]

The law firm of Jeremy Gordon has been practicing federal criminal appeals and post-conviction law since 2012. We have had successful outcomes in more than 60 cases in the past three years. Our entire staff is committed to providing excellent service to our clients and their families. We encourage you to contact our office today to visit with us on how we might be able to help you or your loved one get the representation they deserve.

Pablo Lovo and Joel Sorto were found guilty of conspiracy to commit Hobbs Act robbery, 18 U.S.C. 1951, and using, carrying or possessing a firearm during a crime of violence. 18 U.S.C. 924(c). Lovo and Sorto appealed their convictions to the D.C. Circuit, which garnered a remand on claims of ineffective assistance of counsel. However, in that appeal, the D.C. Circuit held that the “residual clause” of 18 U.S.C. 924(c)(3)(B) was not unconstitutionally vague.

After that decision, the Supreme Court issued its opinion in Sessions v. Dimaya, which held that 18 U.S.C. 16(b) is unconstitutionally vague. Lovo and Sorto subsequently sought rehearing on the basis that Dimaya requires vacatur of their 924(c) convictions.

The court noted that 18 U.S.C. 16(b) and 924(c)(3)(B) were “materially identical.” And the government conceded that the panel should grant rehearing to determine the impact of Dimaya. Nonetheless, the government argued that 924(c)(3)(B) requires a case-specific approach that considers the defendant’s own conduct, rather than the “ordinary case” of the crime. As the D.C. Circuit noted, the government’s argument was an attempt to distinguish 924(c) to avoid “the constitutional concerns that [a categorical] interpretation would create following Dimaya.”

But, circuit precedent held that section 924(c)(3)(B) requires the use of the categorical approach. United States v. Kennedy, 133 F.3d 53, 56 (D.C. Cir. 1998). Therefore, the court rejected the government’s argument of distinguishing 924(c)(3) from section 16.

The D.C. Circuit held that the Supreme Court’s decision in Dimaya invalidates the residual clause of 18 U.S.C. 924(c)(3)(B). However, the court noted that it takes no position on whether conspiracy to commit Hobbs Act robbery may still qualify under 18 U.S.C. 924(c)(3)(A).
The court vacated Lovo’s and Sorto’s 924(c) convictions, and remanded to the district court for further proceedings.

United States v. Yonas Eshetu, a.k.a. Yonas Sebsibe, No. 15-3020

JEREMY’S TAKE: This case was decided earlier this month, and I have since received a lot of inquiries as to what impact Eshetu may have. The D.C. Circuit’s opinion is critical because it holds that 924(c)(3)(B) is in fact invalidated after the Court’s decision in Dimaya. But, the D.C. Circuit did not specifically address whether Hobbs Act conspiracy fails to qualify as a crime of violence under the elements clause of 924(c)(3)(A). I imagine this issue will be decided in the D.C. Circuit in the near future.

Since Dimaya, I have also received many inquiries as to what circuits have held Hobbs Act (substantive, conspiracy or attempted) fails to qualify as a crime of violence under 924(c)(3). I am working on a future newsletter that will take a circuit-by-circuit look at the impact of Dimaya, specifically on Hobbs Act related offenses. Keep an eye out for this.

The law firm of Jeremy Gordon has been practicing federal criminal appeals and post-conviction law since 2012. We have had successful outcomes in more than 60 cases in the past three years. Our entire staff is committed to providing excellent service to our clients and their families. We encourage you to contact our office today to visit with us on how we might be able to help you or your loved one get the representation they deserve.

584 U. S. ____ (2018), No. 16–1027.

 

The Supreme Court handed down an important search and seizure case in Collins vs. Virginia.  

 

Officers from the Albemarle County Police Department observed the same motorcycle driver commit a traffic infraction in two separate incidents.  In both situations, the cyclist got away from the officers. In both situations, he was driving the same motorcycle.

 

The officers investigated and determined that the motorcycle was stolen and in the possession of Collins.  The motorcycle had an extended frame. Collins’ facebook page showed the motorcycle that was used in the traffic infractions at the top of the driveway of a house.  The officer went to the house and parked on the street. From his position, he saw a motorcycle that had an extended frame covered with a white tarp at the same location and angle on the driveway as the facebook photograph.  The officer took a picture of the motorcycle from the street and then walked up to them to where the motorcycle was parked. In order to “investigate further” he pulled off the tarp and observed the same motorcycle that eluded them earlier, and that was in the facebook photos.  The officer ran the plates and found that it was stolen. When Collins returned him, he admitted that he bought the motorcycle without a title. He was charged with receiving stolen property.

 

Collins filed a motion to suppress the evidence that was obtained as a result of the warrantless search of the motorcycle.  He argued that the officer trespassed on the curtilage to conduct an investigation in violation of the Fourth Amendment. The trial court denied the motion.  The Court of appeals affirmed because the officer had probable cause and that there were numerous exigencies that justified the officer’s entry. The Supreme court affirmed saying that the Fourth Amendment’s Automobile Exception and that the motorcycle was contraband.  

 

The Supreme Court noted that “When a law enforcement officer physically intrudes on the curtilage to gather evidence, a search within the meaning of the Fourth Amendment has occurred.”  Furthermore, the court determined that the part of the driveway where the motorcycle was parked and searched was curtilage. In this case, it was because it was “an area adjacent to the home and ‘to which the activity of home life extends,” thus being in the curtilage and requiring a warrant.  This is because “A visitor endeavoring to reach the front door of the house would have to walk part way up the driveway, but would turn off before entering the enclosure and instead proceed up a set of steps leading to the front porch” and “When [the officer] searched the motorcycle, it was parked inside this partially enclosed top portion of the driveway that abuts the house.”  

 

Because of this, the officer’s actions were an encroachment on the fourth amendment in the item searched (the motorcycle) but also in the encroachment of his home.  So the next question was if the automobile exception justified the invasion of the curtilage. Writing for the court, Justice Sotomayor used the following hypothetical:

 

“Applying the relevant legal principles to a slightly different factual scenario confirms that this is an easy case. Imagine a motorcycle parked inside the living room of a house, visible through a window to a passerby on the street. Imagine further that an officer has probable cause to believe that the motorcycle was involved in a traffic infraction. Can the officer, acting without a warrant, enter the house to search the motorcycle and confirm whether it is the right one? Surely not.

 

The reason is that the scope of the automobile exception extends no further than the automobile itself.”

 

Sotomayor noted that “Nothing in our case law, however, suggests that the automobile exception gives an officer the right to enter a home or its curtilage to access a vehicle without a warrant.”  Further, “The Court already has declined to expand the scope of other exceptions to the warrant requirement to permit warrantless entry into the home.” The court went on to say that “searching a vehicle parked in the curtilage involves not only the invasion of the Fourth Amendment interest in the vehicle but also an invasion of the sanctity of the curtilage[ ]” for the same reason that officers may not enter a home to make an arrest without a warrant even when they have probable cause.  She also said that “The automobile exception does not afford the necessary lawful right of access to search a vehicle parked within a home or its curtilage because it does not justify an intrusion on a person’s separate and substantial Fourth Amendment interest in his home and curtilage.”

 

The court denied Virginia’s request to make a bright-line rule saying that “the automobile exception does not permit warrantless entry into ‘the physical threshold of a house or a similar fixed, enclosed structure inside the curtilage like a garage’” so that the officers wouldn’t have to make case by case determinations.  The court stated that the officers already have to do this because the curtilage has already been afforded constitutional protection. Also, Virginia’s proposed rule mistakenly places emphasis on visibility. Sotomayor said, “So long as it is curtilage, a parking patio or carport into which an officer can see from the street is no less entitled to protection from trespass and a warrantless search than a fully enclosed garage.”  Finally, “Virginia’s proposed bright-line rule automatically would grant constitutional rights to those persons with the financial means to afford residences with garages in which to store their vehicles but deprive those persons without such resources of any individualized consideration as to whether the areas in which they store their vehicles qualify as curtilage.”

 

The Supreme Court held that the automobile exception did not allow the officer to enter a home or its curtilage in order to search a vehicle.  The Supreme Court of Virginia reversed the decision on the Supreme Court of Virginia.

Koons v. United States. No. 17-5716

The petitioners in Koons v. United States had committed crimes that invoked the use of the mandatory minimums, their sentences were based on these ranges.  Each of them provided information to the government that assisted in the investigation and prosecution of a case. As a result of this the prosecutor filed for reduction motions that resulted in sentences below the mandatory minimums.  The court did not consider the guideline ranges on the case. This is because the court discarded those when the court sentenced the petitioners to the mandatory minimums.

Later, the sentencing commission approved Amendment 782, which retroactively reduced the guidelines allowing a proportional reduction in sentence for those convicted under the advisory guidelines. In this case, the petitioners claimed they should be eligible for a sentence reduction.  The court said that the petitioners would have to prove that their sentence was based on a sentence that was “based on” the guidelines. They were unable to, and their motions were denied.

Writing for the court, Justice Alito held that petitioners do not qualify for sentence reductions under §3582(c)(2) because their sentences were not “based on” their lowered Guidelines ranges, but instead their sentences were “based on their mandatory minimums and on their substantial assistance to the Government.

 

The court noted that they had ruled in Hughes that “for a sentence to be “based on” a lowered Guidelines range, the range must have at least played “a relevant part [in] the framework the [sentencing] judge used” in imposing the sentence,” but “when the ranges play no relevant part in the judge’s determination of the defendant’s ultimate sentence—the resulting sentence is not “based on” a Guidelines range.”  Here, the guideline ranges played no part in their sentences because “the ranges play[ed] no relevant part in the judge’s determination of the defendant’s ultimate sentence” as the guideline ranges were discarded for the mandatory minimums.

 

The court also noted in response to the petitioners argument that “What matters, instead, is the role that the Guidelines range played in the selection of the sentence eventually imposed—not the role that the range played in the initial calculation. And here, while consideration of the ranges may have served as the “starting point” in the sense that the court began by calculating those ranges, the ranges clearly did not form the “foundation” of the sentences ultimately selected.”

 

The Supreme Court affirmed the decision of the appellate court, denying the petitioner’s motions.  Koons v. United States. No. 17-5716

Hughes v. United States, No. 17–155, 584 U. S. ____ (2018)

Eric Hughes accepted a plea deal in 2013 after being accused of four charges related to drug conspiracy. He pled guilty to conspiracy to distribute methamphetamine and being a felon in possession of a gun in return for the dismissal of the other two charges and the withholding of information regarding previous drug felonies. For the two guilty charges, Hughes agreed to serve a term of 180 months.

In his plea deal, no reference was made to the Guidelines range, however, upon accepting the deal, the District Court noted that the deal was “compatible” with the Guideline ranges. At the time, the recommended range for Hughes’s crimes was set at 188-235 months. Such a consideration by the District Court is required before accepting any plea deal.

Upon the adoption of amendment 782 to the Sentencing guidelines, a crime like Hughes’s would have a recommended range of 151-188 months. Hughes petitioned the court for a reduction in sentence under Amendment 782. The court denied Hughes a reduction on the grounds that Hughes’s plea agreement did not reference the guideline ranges and, therefore, his sentence was not based on the guidelines in a way that would warrant a reduction.

The Court indicated that “the controlling issue here is whether a defendant may seek relief under §3582(c)(2) if he entered a plea agreement specifying a particular sentence under Federal Rule of Criminal Procedure 11(c)(1)(C).”  This is also called a “type-c” agreement.

 

Writing for the Court, Justice Kennedy said that “a sentence imposed pursuant to a Type-C agreement is ‘based on’ the defendant’s Guidelines range so long as that range was part of the framework the district court relied on in imposing the sentence or accepting the agreement.”

 

“In the typical sentencing case there will be no question that the defendant’s Guidelines range was a basis for his sentence. The Sentencing Reform Act requires a district court to calculate and consider a defendant’s Guidelines range in every case.”  

 

The Court went to say that “a defendant’s Guidelines range is both the starting point and a basis for his ultimate sentence” and that agreed sentences under 11(c)(1)(C) were no different.  “Although in a Type-C agreement the Government and the defendant may agree to a specific sentence, that bargain is contingent on the district court accepting the agreement and its stipulated sentence.”  Further, the court noted that “the Sentencing Guidelines prohibit district courts from accepting Type-C agreements without first evaluating the recommended sentence in light of the defendant’s Guidelines range.”  Thus, although the plea deal did not directly reference the Guidelines, they are understood to have played a role in the sentence given that the Court is required to consider the guidelines before accepting a plea deal.

For these reasons, the Supreme Court reversed the decision of the court of appeals and the case was remanded for further consideration.  No. 17–155, 584 U. S. ____ (2018)

No. 16–9493. Argued February 21, 2018—Decided June 18, 2018

Each year, district courts sentence thousands of individuals to imprisonment for violations of federal law. To help ensure certainty and fairness in those sentences, federal district courts are required to consider the advisory United States Sentencing Guidelines. Prior to sentencing, the United States Probation Office prepares a pre-sentence investigation report to help the court determine the applicable Guidelines range. Ultimately, the district court is responsible for ensuring the Guidelines range it considers is correct. At times, however, an error in the calculation of the Guidelines range goes unnoticed by the court and the parties. On appeal, such errors not raised in the district court may be remedied under Federal Rule of Criminal Procedure 52(b), provided that, as established in United States v. Olano, 507 U. S. 725: (1) the error was not “intentionally relinquished or abandoned,” (2) the error is plain, and (3) the error “affected the defendant’s substantial rights,” Molina-Martinez v. United States, 578

  1. S. ___, ___. If those conditions are met, “the court of appeals should exercise its discretion to correct the forfeited error if the error ‘ “seriously affects the fairness, integrity or public reputation of judicial proceedings.” ’ ” Id., at ___. This last consideration is often called Olano’s fourth prong. The issue here is when a Guidelines error that satisfies Olano’s first three conditions warrants relief under the fourth prong.

 

Petitioner Florencio Rosales-Mireles pleaded guilty to illegal reentry into the United States. In calculating the Guidelines range, the Probation Office’s presentence report mistakenly counted a state misdemeanor conviction twice. As a result, the report yielded a Guidelines range of 77 to 96 months, when the correctly calculated range would have been 70 to 87 months. Rosales-Mireles did not object to the error in the District Court, which relied on the miscalculated Guidelines range and sentenced him to 78 months of imprisonment. On appeal, Rosales-Mireles challenged the incorrect Guidelines range for the first time. The Fifth Circuit found that the Guidelines error was plain and that it affected Rosales-Mireles’ substantial rights because there was a “reasonable probability that he would have been subject to a different sentence but for the error.” The Fifth Circuit nevertheless declined to remand the case for resentencing, concluding that Rosales-Mireles had not established that the error would seriously affect the fairness, integrity, or public reputation of judicial proceedings because neither the error nor the resulting sentence “would shock the conscience.”

 

Held: A miscalculation of a Guidelines sentencing range that has been determined to be plain and to affect a defendant’s substantial rights calls for a court of appeals to exercise its discretion under Rule 52(b)to vacate the defendant’s sentence in the ordinary case. Pp. 6–15.

 

(a) Although “Rule 52(b) is permissive, not mandatory,” Olano, 507

  1. S., at 735, it is well established that courts “should” correct a forfeited plain error affecting substantial rights “if the error ‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings,’ ” id., at 736. Like the narrow rule rejected in Olano, which would have called for relief only for a miscarriage of justice, the Fifth Circuit’s shock-the-conscience standard too narrowly confines the extent of the court of appeals’ discretion. It is not reflected in Rule 52(b), nor in how the plain-error doctrine has been applied by this Court, which has reversed judgments for plain error based on inadvertent or unintentional errors by the court or the parties below and has remanded cases involving such errors, including sentencing errors, for consideration of Olano’s fourth prong. The errors are not required to amount to a “powerful indictment” of the system. The Fifth Circuit’s emphasis on the district judge’s “competence or integrity” also unnecessarily narrows Olano’s instruction to correct an error if it seriously affects “judicial proceedings.” Pp. 6–8.

 

(b) The effect of the Fifth Circuit’s heightened standard is especially pronounced in cases like this one. An error resulting in a higher range than the Guidelines provide usually establishes a reasonable probability that a defendant will serve a prison sentence greater than “necessary” to fulfill the purposes of incarceration, 18 U. S. C. §3553(a). See Molina-Martinez, 578 U. S., at ___. That risk of unnecessary deprivation of liberty particularly undermines the fairness,integrity, or public reputation of judicial proceedings in the context of a plain Guidelines error because Guidelines miscalculations ultimately result from judicial error, as the district court is charged in the first instance with ensuring the Guidelines range it considers is correct. Moreover, remands for resentencing are relatively inexpensive proceedings compared to remands for retrial. Ensuring the accuracy of Guidelines determinations also furthers the Sentencing Commission’s goal of achieving uniformity and proportionality in sentencing more broadly, since including uncorrected sentences based on incorrect Guidelines ranges in the data the Commission collects could undermine the Commission’s ability to make appropriate revisions to the Guidelines. Because any exercise of discretion at the fourth prong of Olano inherently requires “a case-specific and fact-intensive” inquiry, Puckett v. United States, 556 U. S. 129, 142, countervailing factors may satisfy the court of appeals that the fairness, integrity,and public reputation of the proceedings will be preserved absent correction. But there are no such factors in this case. Pp. 8–11.

 

(c) The Government and dissent maintain that even though the Fifth Circuit’s standard was inaccurate, Rosales-Mireles is still not entitled to relief. But their arguments are unpersuasive. They caution that granting this type of relief would be inconsistent with the Court’s statements that discretion under Rule 52(b) should be exercised “sparingly,” Jones v. United States, 527 U. S. 373, 389, and reserved for “exceptional circumstances,” Meyer v. Kenmore Granville Hotel Co., 297 U. S. 160. In contrast to the Jones remand, however, no additional jury proceedings would be required in a remand for re-sentencing based on a Guidelines miscalculation. Plus, the circumstances of Rosales-Mireles’ case are exceptional under this Court’s precedent, as they are reasonably likely to have resulted in a longer prison sentence than necessary and there are no countervailing factors that otherwise further the fairness, integrity, or public reputation of judicial proceedings.

 

The Government and dissent also assert that Rosales-Mireles’ sentence is presumptively reasonable because it falls within the corrected Guidelines range. But a court of appeals can consider a sentence’s substantive reasonableness only after it ensures “that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range.” Gall v. United States, 552 U. S. 38, 51. If a district court cannot properly determine whether, considering all sentencing factors, including the correct Guidelines range, a sentence is “sufficient, but not greater than necessary,” 18 U. S. C. §3553(a), the resulting sentence would not bear the reliability that would support a“presumption of reasonableness” on review. See 552 U. S., at 51. And regardless of its ultimate reasonableness, a sentence that lacks reliability because of unjust procedures may well undermine public perception of the proceedings.

 

Finally, the Government and dissent maintain that the Court’s decision will create an opportunity for “sandbagging” that Rule 52(b) is supposed to prevent. But that concern fails to account for the realities at play in sentencing proceedings, where it is highly speculative that a defendant would benefit from a strategy of deliberately forgoing an objection in the district court, with hopes of arguing for reversal under plain-error review later. Pp. 12–14.

 

SOTOMAYOR, J., delivered the opinion of the Court, in which ROBERTS,

  1. J., and KENNEDY, GINSBURG, BREYER, KAGAN, and GORSUCH, JJ., joined. THOMAS, J., filed a dissenting opinion, in which ALITO, J., joined.

United States v. Fleming, No. 17-3954


Fleming was convicted of possessing cocaine with intent to distribute.  His total offense level was 21, and his criminal history category was II.  He was thought to be a career offender, but his priors did not qualify. His range of punishment was 41 to 51 months, but his mandatory minimum was 60 months.  

 

At the beginning of the hearing the district court provided the parties with copies of a local news article that had been published on Cleveland.com about an Ohio State report documenting an increase in overdose deaths in the state.  The article focused on opiod overdoses mainly, only mentioning cocaine briefly and only in connection with opioids. The article was a little over 200 words. The article observed that “ there are indications that cocaine is increasingly being used with fentanyl and other opiates,” and that 80.2% of all cocaine overdose deaths in 2016 also involved an opiate.  

 

There was no suggestion that there would be a variance at the beginning of the hearing or that the court was considering one.  Both the government and the defense made arguments and asked a sentence of 60 months. Neither side mentioned the article or community harm by opioids.  

 

The court varied upward and imposed a sentence of 120 months in prison.  The court said that “the Guidelines were not ‘sufficient to address the kind of issues that we’re now having with this type of trafficking in these large amounts of cocaine.’”  The district court said that the article was “[i]n large part . . . some indication of why long, lengthy sentences are necessary to try and deter” cocaine trafficking.” The court made no reference to Fleming’s near-status as a career offender.  Fleming appealed stating that his sentence was procedurally and substantively unreasonable.

 

The court noted that a sentence can be procedurally unreasonable when “the facts or issues on which the district court relied to impose a variance came as a surprise and [the defendant’s] presentation to the court was prejudiced by the surprise.”  The court also said that the reliance on information from the article from Clevelnad.com was a surprise and prejudicial to Fleming’s sentencing presentation and as such the sentence was procedurally unreasonable. Fleming’s case was possession of cocaine, not the opioids that were discussed in the article.  Plus there was no evidence of opioids in his case.

 

The court also noted that “the weight the court ultimately assigned to [unexpected] considerations” may contribute to the surprise.  In this case, the court clearly stated that the article was important to the decision. Fleming’s inability to contest the veracity or relevance was part of the prejudice:  He was not able to test the veracity or relevance of the information in the article because it was given to him at the beginning of the hearing.

 

Further, although this was presented to the parties at the beginning of the sentencing hearing they didn’t know how it was going to be used until after counsel made his argument.  

 

The government claimed that the plain error doctrine applied to this case.  Plain error is “(1) error (2) that was obvious or clear, (3) that affected [his] substantial rights and (4) that affected the fairness, integrity, or public reputation of the judicial proceedings.”

 

The court stated that the case was error for the reasons already stated.  The court stated that it was obvious because he district court should have realized that the Cleveland.com article contained information that the parties might reasonably not have anticipated would be relevant. The district court should also have been aware that the structure of the sentencing hearing—in which the parties were given the article only at the start of the hearing, the underlying state report was not provided at all, and the district court did not explain why the article was relevant until after the parties’ arguments—would prevent Fleming from commenting on that information in a meaningful way.”  

 

The court also said that Fleming’s substantial rights were affected.  “A sentencing error affects a defendant’s substantial rights when there is a reasonable probability that, but for the error, she would have received a more favorable sentence.”  If the judge had given notice of the court’s intent to use the, article then counsel would have been able to persuade that the article was unreliable.

 

The Court determined that the error “affected the fairness, integrity, or public reputation of the judicial proceedings.”  because “Fleming may serve an additional five years in prison based on potentially unreliable and extraneous information that was interjected into the proceedings in a way that ensured no meaningful adversarial testing.”  

 

Because the court determined that the case was procedurally unreasonable by a plain error standard the court determined that it was not necessary to consider substantive unreasonableness.  

 

Fleming also asked that the case be reassigned to a different judge on remand but the court indicated that was not justified in the record.  The court uses three factors to determine whether reassignment is warranted:

 

(1) whether the original judge would reasonably be expected to have substantial difficulty in putting out of his or her mind previously expressed views or findings;

(2) whether reassignment is advisable to preserve the appearance of justice; and

(3) whether reassignment would entail waste and duplication out of proportion to any gain in preserving the appearance of fairness.

 

Fleming said that reassignment of the case to a different judge was necessary because the judge stated that Fleming had good fortune in avoiding career offender status and that showed that the judge was predisposed to giving Fleming a higher sentence.  However, the district judge also noted that he could not and would not consider Fleming’s “close call” in escaping the career offender enhancement against him. And while Fleming also points out that the Judge indicated the strong likelihood that Fleming would qualify as a career offender, that was before it was determined that he was not a career offender.  Thus the Circuit court declined to hold that Fleming’s case should be reassigned to a different Judge.

 

The Sixth Circuit vacated the sentence and remanded the case for resentencing.  No. 17-3954

In United States of America vs. Ballard, No. 17-427 CR, 2018 WL 1357392, the Second Circuit vacated and remanded a case for a new trial after the prosecutor used improper argument in their summation.

Ballard was charged with trafficking minors, coercion and enticement to engage in interstate travel for illegal sexual activity. In the government’s rebuttal, the prosecutors said the defense theory of the trial was a “government frame-up.” This was a serious mischaracterization of the defense’s argument and the court said in front of the jury that they “didn’t hear” the defense counsel say that the police had framed Ballard. Ballard asked for a motion for new trial under Rule 33, but was denied because the district court observed that the prosecutor’s remarks were a response to an allegation by the defense that one victim was encouraged to lie by an investigator.

Ballard also complained because the government insinuated that it had more evidence than what they were allowed to offer in the trial. The defense objected, and the court said:

“Well, I’m not sure if it is [improper] or not. It certainly is the law. There’s an item of evidence that people are permitted to bring into this Court and get on the stand and ask questions and put that information out to the jury, but there are rules to say there’s some evidence you can’t. So, you have to decide the case based on the proof you heard, not on something you didn’t hear or wasn’t presented to you here in the courtroom. If you do that, you’ll be okay.”

This was improper. The Court did not instruct the jury that they should not assume that such evidence exists or that the jury can find reasonable doubt from a lack of evidence regardless of why the evidence was lacking. Further, because this was after summation arguments (so right at the very end), the defense did not have the chance to clarify the burden of proof, and the jury did not get further instruction as to the burden of proof.

The court considered errors together and found them both to be improper. The court further noted that vacating a conviction based on substantially improper remarks when a defendant’s guilt is established by overwhelming evidence. But that was not the case here given that the government’s evidence was the testimony of the alleged victims. There were also several problems in their credibility as there were several times where there were great contradictions. In a close case like this where the government has made improper summation arguments this, vacating the sentence is appropriate.

The Second Circuit vacated the sentence and remanded the case back to the district court for a new trial. No. 17-427-CR, 2018 WL 1357392.

The law firm of Jeremy Gordon has been practicing federal criminal appeals and post-conviction law since 2012. We have had successful outcomes in more than 60 cases in the past three years. Our entire staff is committed to providing excellent service to our clients and their families. We encourage you to contact our office today to visit with us on how we might be able to help you or your loved one get the representation they deserve.

In United States vs. Aminov. No. 17-1703, the Third Circuit reversed a sentence based on plain error.

Aminov was sentenced in 2011 for aiding and abetting in the production of a document without lawful authority. The PSI recommended a Sentencing Guidelines range of 0-6 months instead of the government’s suggested range of 12-16 months. Aminov was sentenced to 6 months imprisonment followed by 3 years of supervised release. He was accused of healthcare fraud while on supervised release and sentenced to 15 months imprisonment. He was then charged with violation of supervised release. He asked for a concurrent sentence, or in the alternative, a consecutive sentence at the low end of the guideline range. The government sought a consecutive sentence at the high end of the guideline range stating in the sentencing memorandum that “[a]t his original sentencing, in this case, the government advocated for a term of imprisonment in the range of 10 to 16 months. Judge Shapiro imposed a sentence below the government’s recommended range. This was repeated in their sentencing closing arguments. The court gave a sentence at the top of the guideline range and said “I am looking back at what Judge Shapiro saw in you and she imposed a below-guideline range sentence, significantly below guideline range sentence. And in return for her doing that, you immediately went back out and engaged in further similar criminal conduct.” No objection was made to this statement.

Aminov appealed his sentence. It was subject to plain error analysis where he must show:

(1) an error; (2) that is plain or obvious; (3) that affects the defendant’s substantive rights; and (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.

The Third Circuit said that plain error was established here because the range of punishment was not 10-16 months like the prosecutor said, but 0-6 months like what was in the PSI. The district court crafted its sentence in consideration of incorrect facts and committed plain error. It affected the outcome of the district court proceedings because the district court relied on it as support for its sentencing decision and said the same. Finally, allowing a sentence to stand on incorrect information would undermine public confidence in the judicial process.

The Third Circuit vacated and remanded the sentence to the district court for resentencing. No. 17-1703

The law firm of Jeremy Gordon has been practicing federal criminal appeals and post-conviction law since 2012. We have had successful outcomes in more than 60 cases in the past three years. Our entire staff is committed to providing excellent service to our clients and their families. We encourage you to contact our office today to visit with us on how we might be able to help you or your loved one get the representation they deserve.

United States of America v. Jose Prisciliano Gracia-Cantu, No. 15-40227, 2018 WL 2068684

Gracia-Cantu pled guilty to being an alien unlawfully present in the United States after previously being deported. He also had a prior conviction for Assault Family Violence under Texas Penal Code 22.01(a)(1) and 22.01(b)(2). The presentence report recommended an eight level increase for this under 8 U.S.C. § 1101(a)(43)(F) and U.S.S.G. § 2L1.2(b)(1)(C), calling the family violence conviction an “aggravated felony.” Gracia-Cantu argued that the Texas Assault Family Violence is not a “crime of violence” under 18 USC § 16 and as such, the conviction did not qualify as an aggravated felony. The district court found that the Texas Family violence conviction was an aggravated felony under U.S.S.G. § 2L1.2(b)(1)(C), by looking at the judgment conviction that stated that the injury occurred by “striking said Maria Garcia on or about the head with an object: to wit, a can.” The district court then stated that it would require force to strike someone in the head with a can. Gracia-Cantu was sentenced to 41 months and appealed his sentence.

The Fifth Circuit began by addressing whether the family violence case applied under 18 USC § 16(a). Section 16(a) defines a crime of violence as “an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” Prior Fifth Circuit precedent held that Texas Assault Family Violence was not a crime of violence under 16(a). While the government argued that precedent had been overruled by United States v. Castleman, 134 S. Ct. 1405 (2014), and Voisine v. United States, 136 S. Ct. 2272 (2016), the Fifth Circuit disagreed. The Fifth Circuit held that the government’s argument had no merit because of the “rule of orderliness,” which states that one panel of the court may not overrule another unless a “Supreme Court decision ‘expressly or implicitly’ overrules one of our precedents.”  Further, this was confirmed in cases after Castleman, such as United States v. Reyes-Contreras, 882 F.3d 113, 123 (5th Cir. 2018). Therefore, the Fifth Circuit’s prior precedent stood and Gracia-Cantu’s conviction was not a crime of violence under 16(a).

Next the court looked at whether the crime of violence was a crime under § 16(b). The Fifth Circuit noted that § 16(b) was unconstitutionally vague after the Supreme Court’s decision in Sessions vs. Dimaya, 138 S. Ct. 1204 (2018). But since this was not objected to at the time of sentencing it was subject to plain error review. “To obtain relief under plain-error review, an appellant must show: (1) an error or defect that was not affirmatively waived; (2) the legal error is clear or obvious; (3) the error affected the appellant’s substantial rights; and (4) if the first three prongs are satisfied, that the court should exercise its discretion to correct the error because it “seriously affects the fairness, integrity or public reputation of judicial proceedings.”

Dimaya established that it is error to use § 16(b) to show that an offense is a crime of violence. But there were cases that came out before this that would have kept this argument from succeeding at that time. The first two prongs having been met, the court then looked to see if this violated his substantial rights. The court determined that it did because his sentence of 41 months was 11 months above the applicable guidelines for his case without the eight-level increase for the crime of violence. This satisfied the third prong. The court then determined that the disparity between the imposed sentence and the applicable guidelines range can warrant the court’s exercise of discretion. Further, the fact that the higher sentence came from applying a statute declared unconstitutional void by the Supreme Court while the claim was on direct appeal also was considered. The court looked at the totality of the circumstances and determined that the error should be corrected.

The Fifth Circuit vacated Gracia-Cantu’s sentence and remanded the case back down for resentencing. No. 15-40227, 2018 WL 2068684

The law firm of Jeremy Gordon has been practicing federal criminal appeals and post-conviction law since 2012. We have had successful outcomes in more than 60 cases in the past three years. Our entire staff is committed to providing excellent service to our clients and their families. We encourage you to contact our office today to visit with us on how we might be able to help you or your loved one get the representation they deserve.

United States v. Bethea, Seventh Circuit, No. 17-3468, 2018 WL 1959638

Bethea was charged with using fraudulently obtained credit cards to purchase merchandise at retailers. He had a combined guilty plea and sentencing hearing. The judge was in his courtroom in Madison, WI. Bethea was in Milwaukee because of his health issues and limited mobility. The judge sentenced Bethea to 21 months imprisonment, which is at the bottom of his guideline range. Bethea appealed on the basis that his plea via video conference could not be taken.

The court noted that Federal Rule of Criminal Procedure 43 governs that “the defendant must be present at … the initial appearance, the initial arraignment, and the plea.” The court found while there are exceptions to this, none of them applied here. The court also found that while other circuit courts haven’t answered this question, four circuit courts have held that Rule 43 requires the judge and the defendant to be there. Further, they pointed out that several circuits have indicated that there were intangible benefits to the judge and defendant being physically in the courtroom including the Sixth, Fourth, Third, Seventh, and the Tenth Circuits, which hold that this is per se error, meaning that automatic reversal should be granted.

The Seventh Circuit Vacated the Judgment of the District Court and remanded the case. No. 17-3468, 2018 WL 1959638

The law firm of Jeremy Gordon has been practicing federal criminal appeals and post-conviction law since 2012. We have had successful outcomes in more than 60 cases in the past three years. Our entire staff is committed to providing excellent service to our clients and their families. We encourage you to contact our office today to visit with us on how we might be able to help you or your loved one get the representation they deserve.

McCalla pled guilty to conspiracy to possess at least five kilograms of cocaine with intent to distribute. The Mandatory minimum, in that case, was ten years. His range of punishment was 136 to 168 months. He was sentenced to 126 moths and the court found that a sentence below the advisory guideline range would be sufficient but not greater thank necessary to comply with the requirements of section 3553. McCalla was informed that he had the right to appeal. He did not file a direct appeal. In his 2255 motion he alleged that he would have appealed his sentence if counsel had consulted him and that counsel knew that McCalla was unhappy with the indictment and sentence. McCalla also stated that he “expressed his desire to challenge [this] unbelievable result” and requested an evidentiary hearing.

The magistrate replied that he McCalla’s motion should be denied, that McCalla did not ask counsel to file an appeal, that counsel did not have a duty to consult McCalla and that “no rational defendant would have wonted to appeal.” The magistrate ruled that McCalla was not entitled to an evidentiary hearing because his claim was meritless. The District court adopted the recommendation of the Magistrate’s court and denied the certificate of appealability.

On appeal the court started by stating that both a direct appeal and effective assistance of counsel are rights. Further, the accused has the authority to make certain decisions regarding the case such as whether to take the appeal. Counsel is to advise the defendant about the advantages and disadvantages of taking an appeal and make a reasonable effort to discover the defendant’s wishes. When a defendant has not instructed counsel to file a notice of appeal there is a constitutional duty to consult when a defendant reasonably demonstrated to counsel that he was interested in appealing. When counsel’s performance deprives a defendant of an appeal that he would have otherwise taken then that is prejudice even if the appeal would not have won.

McCalla’s statement that he wanted to challenge his sentence showed that he was interested in appealing. Counsel was to advise McCalla about the advantages of taking an appeal. Counsel did not. If counsel had done their duty then McCalla would have asked his attorney to appeal the sentence. This showed that McCalla had alleged facts, that, if true, established a successful ineffective assistance of counsel claim entitling him to an appeal Neither the fact that he not have been successful nor the fact that the sentencing judge notified Thompson that he had a right to appeal changes the conclusion of the court. This means that the district court abused their discretion when they denied his evidentiary hearing on this.

The Eleventh circuit reversed with orders to schedule an evidentiary hearing.

McCalla v. United States. No. 16-15623, 2018 WL 1747722

The law firm of Jeremy Gordon has been practicing federal criminal appeals and post-conviction law since 2012. We have had successful outcomes in more than 60 cases in the past three years. Our entire staff is committed to providing excellent service to our clients and their families. We encourage you to contact our office today to visit with us on how we might be able to help you or your loved one get the representation they deserve.

The Tenth Circuit recently reversed in United States v. Dahda. Dahda was convicted on a drug conspiracy for over 1,000 kilograms or more of marijuana. On appeal, Dahda alleged seven grounds for relief, including that the district court erred in applying Dahda’s base offense level by miscalculating the amount of marijuana attributed to Dahda.

While the rest of the grounds were rejected on appeal, the Tenth Circuit reversed on Dahda’s claim that the district court miscalculated the base offense level. The court indicated that “the government bears the burden to prove drug quantity through a preponderance of the evidence and the base-offense level may consist of an estimate if it contains some record support and is based on information bearing a ‘minimum indicia of reliability.’”

However, the Tenth Circuit found the information used to sustain Dahda’s offense level was not reliable. The appellate court found that the quantities of marijuana found in pallets varied. The government’s witnesses indicated that each pallet had between five to ten to eighty pounds of marijuana. Toward the end of the conspiracy, each pallet usually contained 80 pounds, but there “could have been” times when the pallets contained more than 80 pounds. There was also no indication of the time periods that the government’s witnesses were referencing when discussing the pallets that contained 80 pounds. The court found that there was no way to tie the testimony of the government’s witnesses to the shipments that were attributed to Dahda and as such, it was insufficient. The court also rejected the government’s harmless error analysis.

The Tenth Circuit reversed, United States v. Dahda, No. 15-3237

The law firm of Jeremy Gordon has been practicing federal criminal appeals and post-conviction law since 2012. We have had successful outcomes in more than 60 cases in the past three years. Our entire staff is committed to providing excellent service to our clients and their families. We encourage you to contact our office today to visit with us on how we might be able to help you or your loved one get the representation they deserve.

In United States v. Ricky Davis, the Ninth Circuit Court of Appeals vacated and remanded a conviction for attempted sex trafficking of a minor. The defendant was accused of brining a minor to his house and discussing the possibility of the minor making money by going on dates, taking photos and assisting her in getting the photos online to a known escorting website.

Davis was arrested and indicted for sexual exploitation of a minor (18 U.S.C. 2251) and attempted sex trafficking either by for or of a minor (18 U.S.C. 1591(a), 1594).

The indictment alleged that Davis:

“knowingly attempted to recruit, entice, harbor, transport, provide, obtain, and maintain by any means, a person to engage in a commercial sex act, to wit: a minor female victim, . . . knowing or in reckless disregard of the fact that the person had not attained the age of 18 years[.]”

However, at trial the jury instruction as to the section 1591 violation charged:

“The elements of sex trafficking are: . . . (2) knowing that [the minor] had not attained the age of 18 years, or recklessly disregarded that fact, or the defendant had a reasonable opportunity to observe [the minor], and that [the minor] would be caused to engage in a commercial sex act . . . .”

The above was also reiterated by the prosecutor in closing argument. On appeal, Davis alleged that the inclusion of the phrase “or the defendant had a reasonable opportunity to observe [the minor]” was a constructive amendment to the indictment.

The Ninth Circuit held that a constructive amendment occurred because “the crime charged [in the indictment] was substantially altered at trial, so that it was impossible to know whether the grand jury would have indicted for the crime actually provided.” The court further held that this was a constructive amendment and not a variance, stating that:

“An amendment of the indictment occurs when the charging terms of the indictment were altered, either literally or in effect, by the prosecutor or a court after the grand jury has last passed upon them. A variance occurs when the charging terms of the indictment are left unaltered, but the evidence at trial proves facts materially different from those alleged in the indictment.”

The appellate court indicated that the district court’s jury instructions and the government’s argument had the effect of altering the terms of the amendment.

The Ninth Circuit reversed. See United States v. Davis, No. 15-10402

The law firm of Jeremy Gordon has been practicing federal criminal appeals and post-conviction law since 2012. We have had successful outcomes in more than 60 cases in the past three years. Our entire staff is committed to providing excellent service to our clients and their families. We encourage you to contact our office today to visit with us on how we might be able to help you or your loved one get the representation they deserve.

In United States v. Evans, Nos. 16-10310, 16-10311, the Ninth Circuit vacated terms of supervised release handed down by the Northern District of California because they were unconstitutionally vague.

Evans was charged with a probation violation as well as felon in possession of a firearm and ammunition. Evans was sentenced to two years for the supervised release violation to be ran consecutively with 57 months of imprisonment for the felon in possession charge. This was in addition to three years of supervised release subject to both standard and special conditions of supervised release.

Evans argued on appeal that several conditions of supervised release were unconstitutionally vague. “A condition of supervised release violates due process ‘if it either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.’”

On appeal, Evans challenged a condition preventing him from associating with “any member of the Down Below Gang: “The defendant shall have no connection whatsoever with the Down Below Gang or any other gang. If he is found to be in the company of such individuals or wearing the clothing, colors or insignia of the Down Below Gang, or any other gang, the court will presume that the association was for the purpose of participating in gang activities.”

The Ninth Circuit said that the district court did not abuse its discretion in imposing the condition as he had been linked to that gang and its members. His prior supervised release conditions prohibited him from entering the district where the Down Below Gang congregated.  The condition was found not to be procedurally unreasonable. Although the court did not explain its reasoning for this condition, there was enough information in the record as to what the Down Below Gang was and Evans’ connection to them for the condition to stand. Similarly, the requirement that he have “no connection whatsoever with the Down Below Gang or any other gang” is not vague and overbroad because the court construed there to be a mens rea requirement to that condition. However the condition also said “If [Evans] is found to be in the company of [gang members] or wearing the clothing, colors or insignia of the Down Below Gang, or any other gang, the court will presume that the association was for the purpose of participating in gang activities.” The Ninth Circuit found this to be inappropriate because it removes the requirement that the government prove mens rea in a future revocation proceeding. As such, this sentence was found to be overbroad and was sent back to the district court to be removed.

Similarly, three standard conditions were also found to be vague. Standard Condition 4 requires Evans to “support his or her dependents and meet other family responsibilities.” Evans challenged this saying that “meet other family responsibilities” is too vague and does not alert him as to what he is supposed to be doing. The court noted that the United States Sentencing Guidelines Manual 5D1.3(d)(1) omitted the phrase “meet other family responsibilities.”

Standard Condition 5 requires Evans to “work regularly at a lawful occupation unless excused

by the probation officer for schooling, training, or other acceptable reasons.” Evans challenged the word “regularly,” arguing that it has no clear definition and renders the condition unconstitutionally vague. The Court found that there was no meaning for the word “regularly” in this context. The amended condition in 5D1.3(c)(7) requires thirty hours per week. Or it could mean the same amount each week or month. The court found that this did not give him enough information and he could end up finding what this means in a hearing. The court found it to be vague and remanded it.

Standard condition 13 requires Evans “[a]s directed by the probation officer,” to “notify third parties of risks that may be occasioned by [his] criminal record or personal history or characteristics….” Again, Evans said that there was no indication of what “personal history,” “characteristics,” “risks” or “third parties” means. The government argued that he could talk to his probation officer, but the court noted that a vague condition of supervised release can’t be cured by giving the probation officer “unfettered power of interpretation.” Again, the Sentencing Commission amended the guideline to remove the phrase “personal history or characteristics” and “to clarify that a probation officer may only require a defendant to notify specific persons of specific risks that the defendant poses to those persons.”

The Ninth Circuit Reversed, 16-10310, 16-10311

The law firm of Jeremy Gordon has been practicing federal criminal appeals and post-conviction law since 2012. We have had successful outcomes in more than 60 cases in the past three years. Our entire staff is committed to providing excellent service to our clients and their families. We encourage you to contact our office today to visit with us on how we might be able to help you or your loved one get the representation they deserve.

2255 motions

United States v. Wheeler, __F.3d__, 2018 WL 1514418 (4th Cir. 2018)

The Fourth Circuit recently handed down a very important and precedential decision on the applicability of the savings clause to the legality of a petitioner’s sentence.

Appellant Gerald Wheeler was charged in the United States District Court for the Western District of North Carolina of conspiracy to possess with intent to distribute cocaine, cocaine base, and marijuana, possession of a firearm during and in relation to a drug trafficking crime, and possession of a firearm by a convicted felon. Wheeler pled guilty pursuant to a plea agreement, which agreed to an enhanced penalty pursuant to 21 U.S.C. 851 for the drug count.

In 2008, the district court sentenced Wheeler to 120 months in prison on Count One based on the statutory mandatory minimum under 21 U.S.C. 841(b)(1)(B) and 851. The Fourth Circuit affirmed Wheeler’s sentence in 2009. United States v. Wheeler, 329 Fed. Appx. 481 (4th Cir. 2009).

In 2010, Wheeler filed a motion pursuant to 28 U.S.C. 2255 alleging his counsel was ineffective for, inter alia, failing to argue that Wheeler’s 1996 North Carolina conviction for possession of cocaine did not qualify to enhance his sentence under section 851. The district court dismissed Wheeler’s 2255 motion as foreclosed by the Fourth Circuit’s holdings in United States v. Harp, 406 F.3d 242 (4th Cir. 2005) and United States v. Simmons, 635 F.3d 140 (4th Cir. 2011). Those decisions held, “[T]o determine whether a conviction is for a crime punishable by a prison term exceeding one year [under North Carolina law], … we consider the maximum aggravated sentence that could be imposed for that crime upon a defendant with the worst possible criminal history.” Harp, 406 F.3d at 246; Simmons, 635 F.3d at 146. Pursuant to this reasoning, the district court found that Wheeler received a 6 to 8-month sentence for the 1996 conviction, thus, “his offense was punishable by imprisonment for more than a year” because it was a Class I felony which carried a maximum sentence of 15 months. Wheeler filed a notice of appeal and motion for COA with the Fourth Circuit on August 3, 2011.

While Wheeler’s motion for COA was pending, the Fourth Circuit overturned Simmons on rehearing en banc. The court determined that “in deciding whether a sentencing enhancement was appropriate under the Controlled Substances Act, a district court could no longer look to a hypothetical defendant with the worst possible criminal history…. [A] sentencing court may only consider the maximum possible sentence that the particular defendant could have received.” United States v. Kerr, 737 F.3d 33, 37 (4th Cir. 2013). Even so, the Fourth Circuit denied Wheeler’s motion for COA because it determined Simmons did not apply retroactively to cases on collateral review.

Wheeler subsequently submitted a request for authorization to file a second 2255 motion with an alternative petition pursuant to 28 U.S.C. 2241 seeking application of the savings clause (28 U.S.C. 2255(e)). The Fourth Circuit denied Wheeler’s request to file a second or successive 2255 but did not address his 2241 petition which was pending at the time before the district court.

The district court stayed the 2241 petition pending the resolution of United States v. Surratt, No. 14-6851. The majority panel in Surratt distinguished the court’s decision in In re Jones, which granted savings clause relief after setting forth a three-part test based on the legality of a petitioner’s conviction, but not his sentence. Following Surratt, the district court denied Wheeler’s 2241 petition because it did not challenge the legality of his conviction, only his sentence.

Wheeler once again appealed, and the Fourth Circuit subsequently granted rehearing en banc in Surratt, thus vacating the panel’s prior opinion. However, rehearing in Surratt was found to be moot after his sentence was commuted by President Obama. The Fourth Circuit lifted the stay pending rehearing and has finally addressed the merits of Wheeler’s 2241 claims.

First, the Fourth Circuit addressed the government’s “shifting position” on jurisdiction. The government initially conceded that Wheeler met the savings clause requirements before the district court. However, on appeal, the government did an “about-face,” and argued that the court was without jurisdiction because Wheeler had failed to satisfy the savings clause requirements. The Fourth Circuit concluded that “[b]ecause the savings clause requirements are jurisdictional, we must reject Appellant’s waiver argument. Though the Government’s change of position is a ‘distasteful occurrence[ ]’ and is ‘not to be encouraged, its about-face is irrelevant to our resolution of’ this appeal.”

The court then turned to whether Wheeler’s 2241 petition satisfied the savings clause requirements of the circuit. The Fourth Circuit’s seminal decision, In re Jones, held that a petitioner must satisfy three elements to meet the savings clause requirements:

[Section] 2255 is inadequate and ineffective to test the legality of a conviction when: (1) at the time of conviction, settled law of this circuit or the Supreme Court established the legality of the conviction; (2) subsequent to the prisoner’s direct appeal and first 2255 motion, the substantive law changed such that the conduct of which the prisoner was convicted is deemed not to be criminal; and (3) the prisoner cannot satisfy the gatekeeping provisions of 2255 because the new rule is not one of constitutional law.

The question now before the court was whether Jones applies to sentencing arguments. The Fourth Circuit held it does and announced a new savings clause test for erroneous sentences:

“[W]e conclude that 2255 is inadequate and ineffective to test the legality of a sentence when: (1) at the time of sentencing, settled law of this circuit or the Supreme Court established the legality of the sentence; subsequent to the prisoner’s direct appeal and first 2255 motion, the aforementioned settled substantive law changed and was deemed to apply retroactively on collateral review; (3) the prisoner is unable to meet the gatekeeping requirements of 2255(h)(2) for second or successive motions; and (4) due to this retroactive change, the sentence now presents an error sufficiently grave to be deemed a fundamental defect.”

After applying the new savings clause test to Wheeler’s 2241 claims, the Fourth Circuit held that Wheeler did, in fact, show that 2255 is inadequate and ineffective to test the legality of his detention.

The Fourth Circuit VACATED and REMANDED to the district court to have his 2241 petition addressed on the merits.

The law firm of Jeremy Gordon has been practicing federal criminal appeals and post-conviction law since 2012. We have had successful outcomes in more than 60 cases in the past three years. Our entire staff is committed to providing excellent service to our clients and their families. We encourage you to contact our office today to visit with us on how we might be able to help you or your loved one get the representation they deserve.

In United States v. Jacinto-Gonzalez, 2018 WL 1378021, the Eleventh Circuit vacated a sentence in order for an inmate to be credited with the time that he spent in a federal facility.

Jacinto- Gonzalez was arrested and charged with being in the United States after being previously deported. He pled guilty on June 23 and had been in custody since March 26. His punishment range was between 8 and 14 months. His counsel asked the court “to fashion a sentence that gives him credit for that time.” The court said it was hard to know how much credit Jacinto-Gonzalez would get and sentenced Jacinto-Gonzalez to eight months confinement with no credit for time served. The court said:

“What I’ve essentially done is given him credit for the time served and calculate it as a 13- or 14-month sentence, depending on whether you’re giving him credit or not for the 30 days he did on state time, which technically he should not get credited against this, but the bottom line is eight months with no credit for time served before today.”

When his attorney objected, the court said that he was effectively getting credit. The court placed in the order that: “The defendant has received credit for his prior time in custody. Thus, the defendant SHOULD NOT receive credit for any time served prior to October 4, 2017, the date of sentencing (emphasis added)”

The court stated that while 18 USC 3585(b) says that “‘a defendant shall be given credit” for time served in official detention “that has not been credited against another sentence.’” The Supreme Court has also stated that section does not authorize a district court to compute the credit at sentencing. Rather, it is the Bureau of Prisons that computes credit for time served.  This means that although the court could adjust Jacinto-Gonzalez’s sentence for the amount of time served that he had, the court didn’t have the authority to prevent the BOP from calculating the time served.

The government said that this error was harmless and invited. The court disagreed. First Jacinto-Gonzalez just asked that the court also consider his time served when the court was deciding the appropriate length of the sentence under 2L1.2 of the Guidelines. Second, with regard to harmlessness, Jacinto-Gonzalez did not necessarily receive a shorter sentence by getting sentenced to 8 months with no credit for time served. Finally, it wasn’t clear when he went in and out of federal custody meaning it’s not clear beyond a reasonable doubt that the error complained of did not contribute to the sentence.

The Eleventh Circuit reversed with orders that the district court can consider the time spent by Jacinto-Gonzalez received in state custody pursuant to 2L1.2 comment 6, but the court can’t preclude the BOP from performing its own calculation of time served. 2018 WL 1378021

In United States v. Bell, 2018 WL 1432956, the Third Circuit vacated an improperly assigned sentence.

Bell pled guilty to the offense of felon in possession of a firearm. He was enhanced at sentencing due to the ACCA and his priors.

Bell’s first ground for appeal, that his priors did not meet the standard for the ACCA was denied.

Bell’s second ground was that his sentence was improperly calculated. The PSI calculated his sentence at 37 and assessed a three-level downward variance for acceptance of responsibility down to 34. When combined with his criminal history category of IV, his sentencing range came out to 262-327 months. The court adopted the PSI and granted a downward variance to 202 months.

Bell argued that his offense level should have started at 34 under U.S.S.G. § 4B1.4(b)(3)(A) which after the three-point reduction for acceptance of responsibility would put him at a 31 (note:  level 31 criminal history category 6 would be 188–235 months on the 2016 manual). The government conceded this to be accurate AND conceded this to be plain error under Rule 52(b) and Molina Martinez v. United States, 136 S. Ct. 1338, 1345 (2016) “When a defendant is sentenced under an incorrect Guidelines range—whether or not the defendant’s ultimate sentence falls within the correct range—the error itself can, and most often will, be sufficient to show a reasonable probability of a different outcome absent the error.”

The Third Circuit vacated the sentence and remanded it back to the district court. United States v. Bell, 2018 WL 143295

dimaya

THE COURT HAS HELD THAT THE “RESIDUAL CLAUSE” OF 18 U.S.C. 16(b) IS UNCONSTITUTIONALLY VAGUE AND VIOLATES THE DUE PROCESS CLAUSE.

This is big news for a lot of people out there, but many people may not understand the importance of Dimaya and why it has been a such a hot topic recently.

Section 16(b) defines a “crime of violence” as:

(a) an offense that has an element the use, attempted use, or threatened use of physical force against the person or property of another, or

(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

The latter subsection is what is known as the “residual clause,” and it probably looks very familiar to a lot of you. That is because the wording is quite similar to the definition of a “crime of violence” under the Armed Career Criminal Act (“ACCA”). And of course, the Supreme Court held the residual clause of the ACCA unconstitutional in 2015, in Johnson.

So what does this decision mean and why is it important?

First, the decision is extremely significant because the Court has now held that its decision in Johnson is applicable to other similarly-worded statutes. As most of you will likely recall, we were all waiting with bated breath for the decision in Beckles. There, the Supreme Court addressed the question of whether Johnson also applied to the U.S. Sentencing Guidelines. In a major upset, the Court held it did not because the Guidelines were not subject to a Due Process challenge.

However, today’s holding shows that Johnson can be equally applied to statutes that use identical or similarly-worded residual clauses. So, what statutes include language similar to 18 U.S.C. 16(b)? 18 U.S.C. 924(c).

Under section 924(c), a “crime of violence” is defined as:

(A) has an element the use, attempted use, or threatened use of physical force against the person or property of another, or

(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

18 U.S.C. 924(c)(3)(A)-(B).

Thus, the residual clause of 18 U.S.C. 924(c)(3)(B) is near identical to the now-defunct 18 U.S.C. 16(b).

This is big news. Those that have been charged and convicted under 18 U.S.C. 924(c), and whose predicate offense was a “crime of violence” that falls under the residual clause of 924(c)(3)(B), may rely on Dimaya to argue that their conviction and sentence are unconstitutional. I am sure that many individuals currently have litigation that is stayed pending Dimaya, and many others out there have been waiting to see what the decision would bring. With today’s holding, now is the time to act.

I have included the syllabus Dimaya below.

SUPREME COURT OF THE UNITED STATES

SESSIONS, ATTORNEY GENERAL v. DIMAYA

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

No. 15-1498 Argued January 17, 2017-Reargued October 2, 2017-Decided April 17, 2018

The Immigration and Nationality Act (INA) virtually guarantees that any alien convicted of an “aggravated felony” after entering the United States will be deported. See 8 U. S. C. 1227(a)(2)(A)(iii), 1229b(a)(3), (b)(1)(C). An aggravated felony includes “a crime of violence (as defined in [18 U. S. C. 16] . . . ) for which the term of imprisonment [is] at least one year.” 1101(a)(43)(f). Section 16’s definition of a crime of violence is divided into two clauses—often referred to as the elements clause, 16(a), and the residual clause, 16(b). The residual clause, the provision at issue here, defines a “crime of violence” as “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” To decide whether a person’s conviction falls within the scope of that clause, courts apply the categorical approach. This approach has courts ask not whether “the particular facts” underlying a conviction created a substantial risk, Leocal v. Ashcroft, 543 U. S. 1, 7, nor whether the statutory elements of a crime require the creation of such a risk in each and every case, but whether “the ordinary case” of an offense poses the requisite risk, James v. United States, 550 U. S. 192, 208.

Respondent James Dimaya is a lawful permanent resident of the United States with two convictions for first-degree burglary under California law. After his second offense, the Government sought to deport him as an aggravated felon. An Immigration Judge and the Board of Immigration Appeals held that California first-degree burglary is a “crime of violence” under 16(b). While Dimaya’s appeal was pending in the Ninth Circuit, this Court held that a similar residual clause in the Armed Career Criminal Act (ACCA)—defining “violent felony” as any felony that “otherwise involves conduct that presents a serious potential risk of physical injury to another,” 18 U. S. C. 924(e)(2)(B)—was unconstitutionally “void for vagueness” under the Fifth Amendment’s Due Process Clause. Johnson v. United States, 576 U. S. ___, ___. Relying on Johnson, the Ninth Circuit held that 16(b), as incorporated into the INA, was also unconstitutionally vague.

Held: The judgment is affirmed. 803 F. 3d 1110, affirmed.

The law firm of Jeremy Gordon has been practicing federal criminal appeals and post-conviction law since 2012. We have had successful outcomes in more than 60 cases in the past three years. Our entire staff is committed to providing excellent service to our clients and their families. We encourage you to contact our office today to visit with us on how we might be able to help you or your loved one get the representation they deserve.

851

Ninth Circuit Holds 851 Enhancement Inapplicable Under Modified Categorical Approach Because Prior Was Not A “Felony Drug Offense”

The Ninth Circuit in United States v. Ocampo-Estrada has vacated a 20-year mandatory minimum sentence that was imposed as a result of a 21 U.S.C. 851 enhancement notice because the prior the Government relied upon did not constitute a “Felony Drug Offense.”

Ocampo was convicted of conspiracy to distribute methamphetamine. Before trial, the government filed an 851 enhancement notice based on his prior felony conviction for possession of a controlled substance (Ocampo’s prior was under California Health & Safety Code section 11378). The government’s position was that the prior was a “felony drug offense.”  21 U.S.C. 802(44) defines “felony drug offense” as “an offense that is punishable by imprisonment for more than one year under any law of the United States or of a State or foreign country that prohibits or restricts conduct relating to narcotic drugs, marihuana, anabolic steroids, or depressant or stimulant substances.” The government offered state-court minutes and judgment, but none of these records stated which controlled substances Ocampo pled to. In other words, none of what the government had explained that he was convicted of “narcotic drugs, marihuana, anabolic steroids, or depressant or stimulant substances.”

Ocampo did not challenge the sentence in the district court on the basis that his prior conviction did not qualify as a felony drug offense. But the court did not tell him that he was supposed to make a challenge under 851(c)(2) to avoid waiving the issue either. Ocampo was sentenced to 20 years.

First, the Appellate Court determined that Ocampo didn’t waive his challenge to the prior. The District Court never asked Ocampo whether he affirmed or denied the conviction. The District Court also never informed him that if he didn’t challenge it that would mean that he was waiving any such challenge.

Then, the Appellate Court indicated that they would look at the elements of the statute that Ocampo was convicted under rather than the underlying conduct or facts. The parties agreed that the California statute that constituted his possession of a controlled substance was too broad, so the issue was whether the statute, California Health & Safety Code section 11378, was divisible. The appellate court held that it was divisible. Other similar California statutes approved of multiple convictions under a drug statute when the defendant had several different types of drugs.  That means that each drug was a separate offense. Because it is a divisible statute, Mathis allowed the Appellate Court to look at a “limited class of documents” to determine if the prior was a qualifying offense. However, none of the government’s documents showed which controlled substance Ocampo’s prior involved. As a result, the court held that Ocampo’s prior was not a “felony drug offense” under 21 U.S.C. 802(44) because the “limited class of documents” did not demonstrate that the prior was related to “narcotic drugs, marihuana, anabolic steroids, or depressant or stimulant substances.”

The government tried to argue that Ocampo admitted the prior involved meth, citing an objection Ocampo made to the presentence report in his federal case. However, because that objection was made in the context of Ocampo’s federal criminal case, and not FROM THE PRIOR CASE, the Ninth Circuit held that the statement could not be used to prove the prior was a “felony drug offense.”

Accordingly, the Ninth Circuit reversed. See: United States v. Ocampo-Estrada, No. 15-50471.