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

Gavel and law books

In United States vs. Shepherd, No. 15-50991, the Fifth Circuit reversed the district court’s denial of a 2255 motion based on failure to properly investigate a claim.

Shepherd was charged with Indecent Exposure to a Minor (Count One), a class six felony in Arizona; and Public Sexual Indecency to a minor,  [“to a minor” is not listed after the attempted charge] (Count Two). Shepherd ended up pleading to Count Two, which was amended to “Attempted Public Sexual Indecency.” He was given a suspended sentence of 230 days and lifetime probation as well as being required to register as a sex offender.

Shepherd moved to Nevada and was charged with Indecent Exposure. He was sentenced to 12 to 34 months and was required under Nevada Law to register for life as a sex offender.

Shepherd moved to Texas, but never registered. Federal agents found out about his presence in the state and asked the Texas Department of Public Safety (DPS) who said that he would have to register based on the AZ prior only (not the Nevada prior).

Shepherd was charged with the federal crime of failing to register and update his registration as a sex offender. Shepherd said that he had not registered because he believed that he was not required to do so under Texas law. IN SEPTEMBER 2012 (this date is important), Shepherd pled not guilty and his lawyer filed an “Unopposed Motion to Continue” stating that he had newly received discovery and needed additional time to go over it with Shepherd. Shepherd ended up pleading guilty to the offense. The factual basis showed that BOTH his Arizona and Nevada convictions required registration. Shepherd was sentenced to 24 months of imprisonment and 30 years of supervised release.

When Shepherd tried to register, Texas DPS said that he did not have to register based on either his Arizona or Nevada conviction. Shepherd filed a 2255 motion. Shepherd said that he never had a legal duty to register in Texas and that his attorney was ineffective for failing to advise him of that.

Shepherd submitted a letter from a lawyer from DPS. The DPS lawyer said that his job is to make the determinations on who must register.  He looked at the Arizona and Nevada convictions and did not see that Shepherd had a duty to register as a sex offender. The attorney from DPS said that in the past they used a different method to determine this. The method was to look at the elements of the case, as well as the underlying facts to see if they are substantially similar to an offense that would require someone to report in Texas). ON AUGUST 30, 2012 (BEFORE SHEPHERD PLED), a case came out in a TEXAS STATE COURT ruling that DPS had to use a new method (where they could only look at the elements of an out of state offense and compare them to the elements of an in-state Texas reportable offense) (Texas Department of Public Safety v. Anonymous Adult Texas Resident, 382 S.W.3d 531 (Tex. App.—Austin 2012, no pet.)). Under the new method, Shepherd would NOT have to register. The DPS lawyer said that if he was asked on AUGUST 31, 2012 if Shepherd had to register the lawyer would have likely said no.

The district court said that DPS erred in saying that Shepherd did not have to register because the code section between the Arizona Law and the Texas Law were substantially similar. The district court granted a certificate of appealability as to whether Shepherd’s plea was rendered involuntary by “his lack of knowledge about DPS’ change in position . . . that his Arizona conviction did not, after all, require that he report.”

The appellate court noted that the standard of review here would be de novo and explained what is required to prove ineffective assistance of counsel, which is: “First, the defendant must show that counsel’s performance was deficient. … Second, the defendant must show that the deficient performance prejudiced the defense.” The court also mentioned that ineffective assistance of counsel applies to pleas. Also, the court must look at whether the lawyer was reasonable based on the facts viewed as of the time of counsel’s conduct.

Shepherd’s court appointed attorney said that the only thing he did was compare the Arizona Law with the Texas Law. The attorney did not read ANY case law. Also, he did not remember learning that his client had to register as a sex offender. The attorney also said that he did not know which statutes to compare to each other. The attorney also did not talk to anyone from the DPS about how they determined that Shepherd was supposed to register. The court said that at a minimum, the attorney should have tried to discern the method that the DPS uses to determine who is required to register. He could have done that by doing brief legal research. His research would have led him to the Anonymous Adult case. This was not part of legal strategy because there was no strategy offered by the attorney. All of this means that his attorney’s performance was deficient.

For ineffective assistance of counsel Shepherd must also show prejudice. In this case, it means that “there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” This depends on whether the evidence likely would have changed the outcome of a trial. “If the petitioner claims that counsel erred by failing to investigate or discover certain exculpatory evidence, the prejudice determination will depend upon whether the discovery of such evidence would have influenced counsel to change his advice regarding the guilty plea.”

Shepherd’s attorney said that if he would have looked at the law, specifically, Anonymous Adult, then he would have filed a motion to dismiss. These things go to Shepherd’s point. Even more so, if this case went to trial then Shepherd’s attorney would have been able to use the problems in the government’s case at trial as well. Also, Anonymous Adult came out before he pled, so he would have been able to know about it in his analysis.

The court ruled that Shepherd’s counsel was ineffective and as such his plea was involuntary. The opinion of the district court was reversed. United States vs. Shepherd, No. 15-50991.

Fair Sentencing

In Hicks v. United States, No. 11-50608, the Fifth Circuit remanded a sentence where the defendant’s alleged conduct was before the enactment of the Fair Sentencing Act but his sentencing was after the enactment of the Fair Sentencing Act.

Hicks was arrested on April 8 and a search revealed 80 grams of crack cocaine.  His mandatory minimum was set on 20 years based on when he was arrested.  On August 3, 2010, the Fair Sentencing Act took effect.  The fair sentencing act increased the drug amounts necessary to trigger mandatory minimum sentences for crack offenses.  Hicks’ mandatory minimum would have been 10 years under the Fair Sentencing Act.

The judge held that the Fair Sentencing Act did not apply to defendants who had been accused of committing their crimes before the effective date of the Fair Sentencing Act even if their sentencing dates were after its enactment. The Supreme Court rejected that argument in Dorsey v. United States.  So now a person whose conduct allegedly happened before the date of the Act are eligible to receive the benefit of the Act if their sentencing happened after the Act was passed.

Hicks did not bring up that the Act should have been applied to his sentence on direct appeal. He sought certiorari from the Supreme Court who vacated and remanded it back to determine if the failure to apply the Act was plain error.

In order to show plain error, “an appellant must show (i) the existence of an error (ii) that is “clear or obvious,” (iii) that affects the appellant’s substantive rights, and (iv) that “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.””

The government conceded that the error has been met in this case. In light of Dorsey v. United States, there is unresolved clear error and that it violated Hicks’ substantial rights. This is because defendants who are subject to sentences under 3553 receive sentences far lower than defendants who are subject to mandatory minimums.

The prosecutor realized that this error affected the fairness, integrity and public reputation of judicial proceedings. The prosecutor agreed at sentencing when the prosecutor indicated that “[i]f the Supreme Court ultimately says that [the Fair Sentencing Act] should be retroactive to conduct that occurred like for this, before August 2010, then I can guarantee that all of those cases are going to be resentenced. Every single one.”

The Fifth Circuit Reversed, No. 11-50608.

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.

Armed Career Criminal Act

In Higdon v. United States, No. 17-5027, the Sixth Circuit held that an inmate’s prior conviction for discharging a firearm into an occupied structure was not a crime of violence.

Higdon pled guilty to being a felon in possession of a firearm. The district court found that Higdon was an Armed Career Criminal based, in part, on a prior 1984 conviction for discharging a firearm into an occupied structure, in violation of  N.C.Gen. Stat. § 14–34.1 (1981). Higdon’s 15-year sentence was handed down before Johnson v. United States (2015). After the Supreme Court’s decision in Johnson, Higdon filed a 2255 motion arguing that his North Carolina prior conviction could no longer be used as a predicate “violent felony.”

On appeal, the Sixth Circuit noted that an offense is a “violent felony” if it has as an element the use, attempted use, or threatened use of physical force against the person of another. The court then turned to the North Carolina statute as it read in 1984:

Any person who willfully or wantonly discharges or attempts to discharge:

(1) Any barreled weapon capable of discharging

shot, bullets, pellets, or other missiles at a muzzle

velocity of at least 600 feet per second; or

(2) A firearm

into any building, structure, vehicle, aircraft, watercraft, or other conveyance, device, equipment, erection, or enclosure while it is occupied is guilty of a Class H felony.

The courts interpret that statute to have four different elements: (1) willfully and wantonly discharging (2) a firearm (3) into property (4) while it is occupied.

The Sixth Circuit found that there had not been an argument that these elements involved the “attempted” or “threatened” use of physical force against another, noting that the bullet can miss everyone in the building, and no physical force can be applied to the person of anyone and it would still qualify as a violent offense. Accordingly, the Sixth Circuit held that the offense fails to satisfy the “force clause” of 18 U.S.C.§ 924(e)(2)(B)(i).

The government argued (and the district court held) that even if no one was actually struck, the defendant fired a bullet toward a location where he knew or believed another person to be.  The district court believed that was enough but the standard is that force be used “against the person of another.” However, the Sixth Circuit found that description might have satisfied the requirement of “recklessness,” but it did not meet the requirement that the force be used “against the person of another” which is the standard of 18 U.S.C. § 924(e)(2)(B)(i).

Without the required number of predicate offenses, Higdon’s ACCA sentence was no longer valid.  As such, the Sixth Circuit reversed the district judgment and remanded the case back for re-sentencing. No. 17-5027.

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.

Acceptance Of Responsibility

In United States v. Knight, No. 16-10404, the Ninth Circuit vacated a sentence after the government failed to recommend a third point off the defendant’s acceptance of responsibility point.

Knight originally pled not guilty and asked to extend his trial date. Knight also filed a motion to suppress evidence which was denied. Knight then asked for another trial date extension, later pled guilty pursuant to a plea agreement, and then asked that it be withdrawn so he can plead “straight up.” At sentencing, the government refused to move for the third point for acceptance of responsibility because they were forced to prepare for a motion to suppress. There was no other justification or reasoning involved.

On appeal, the Ninth Circuit noted that “a motion to suppress evidence cannot be held a against a defendant for purposes of the adjustment.” The court also noted that the government can only refuse to seek the third point for acceptance of responsibility for the reasons in Sentencing Guideline 3E1.1(b), which are “when failing to timely notify of an intention to enter a guilty plea either (1) did not allow the government to avoid preparing for trial or (2) impeded the government’s or court’s ability to allocate their resources efficiently.” The court noted that there may have been other things that could have been justification for the denial of the third point but that none of them had been referenced by the record.

The court vacated the sentence and remanded the case back to the trial court.  No. 16-10404

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. O’Connor, No. 16-3300, the Tenth Circuit found that Hobbs Act robbery was not a “crime of violence” under the Sentencing Guidelines.

O’Connor pled guilty to being a felon in possession of a firearm without a plea agreement. The presentence report indicated that O’Connor’s base offense level should be 20 based on U.S.S.G. § 2K2.1(a)(4)(A), which applies when a defendant has a prior felony conviction for a “crime of violence.” O’Connor’s prior convictions included aiding and abetting in Hobbs Act robbery, in violation of 18 U.S.C. § 1951 and 2; and aiding and abetting in the brandishing of a firearm in relation to a crime of violence, in violation of 18 U.S.C. § 924(c) and 2. The district court agreed with Probation and the Government and held that O’Connor’s prior conviction for Hobbs Act robbery qualified as a “crime of violence.”

On appeal before the Tenth Circuit, O’Connor argued that his prior Hobbs Act robbery conviction fails to qualify as a “crime of violence” under the Guidelines. The Tenth Circuit began by looking at whether Hobbs Act robbery qualified under either the “force clause” or the “enumerated offenses clause.” Section 4B1.2 of the U.S. Sentencing Guidelines defines a crime of violence:

(a) The term “crime of violence” means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that—

(1) has an element the use, attempted use, or threatened use of physical force against the person of another [force clause]; or

(2) is murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery, arson, extortion, or the use or unlawful possession of a firearm described in 26 U.S.C. 5845(a) or explosive material as defined in 18 U.S.C. 841(c). [enumerated offenses clause].

U.S.S.G. 4B1.2(a)(1)-(2).

The Government argued that because “robbery” and “extortion” are both listed in the enumerated offenses clause, Hobbs Act robbery must qualify as a crime of violence. However, the Tenth Circuit, in applying the categorical approach consistent with Descamps and Mathis, found that Hobbs Act robbery encompasses threats to property and generic robbery excludes such threats. Thus, the court concluded that Hobbs Act robbery under 18 U.S.C. § 1951 is broader than generic robbery and therefore does not categorically qualify as a crime of violence under that portion of the enumerated offenses clause.

The court then looked at the extortion statute. The court noted that Sentencing Guideline Amendment 798 noted that extortion was:

“obtaining something of value form another by the wrongful use of (i) force, (ii) fear of physical injury, or (iii) threat of physical injury.” The court ultimately found that based on the interpretations of Amendment 798, the Guidelines definition of extortion is ambiguous and thus must be interpreted in favor of O’Connor as excluding injury and threats of injury to property.

In sum, the Tenth Circuit held that “Hobbs Act robbery can be accomplished by threats to property. Both generic robbery and Guidelines extortion, as interpreted above, cannot–they are limited to conduct involving physical force or threats of physical force against a person. We thus conclude that Hobbs Act robbery under 1951(b)(1) does not categorically qualify as a crime of violence under the enumerated offense clause of the Guidelines.”

Turning to the force clause, the court held that “[b]ecause Hobbs Act robbery criminalizes conduct involving threats to property, it does not qualify as a crime of violence under the Guidelines’ force clause.

The court’s analysis concluded that Hobbs Act robbery fails to categorically qualify under either the force clause or enumerated offense clause of U.S.S.G. § 4B1.2, and cannot be used to enhance a sentence under U2K2.1(a)(4)(A). The Tenth Circuit vacated O’Connor’s sentence and remanded to the district court for re-sentencing.



In  United States v. Brown Nos. 16-14267 and 16-14284, the Eleventh Circuit vacated and remanded a sentence after declaring that modifying the sentence without the defendant’s presence was an abuse of discretion.

Brown pled guilty to Felon in possession of a firearm. He had three prior convictions. Brown was sentenced to 15 years under the Armed Career Criminal Act.  He challenged his sentence in a 2255 motion in light of Johnson v. United States, stating that his fleeing and eluding no longer qualified as a “violent felony” so that he would not be eligible for the 15-year sentence. The government agreed that the sentence should be vacated but recommended that the court impose a sentence of 10 years. Brown objected, stating that he should have a resentencing hearing.  The district court granted the motion and stated that it “corrected” Brown’s sentence with a sentence of 10 years imprisonment. Ten years is the maximum for Felon in Possession of a Firearm. Brown’s sentencing guideline range was 77 to 96 months, making 120 months a substantial upward departure. The court did not hold a sentencing hearing and did not give the reasons for denying a second hearing. Brown appealed the ruling on his 2255 and the Eleventh Circuit granted COA. The court also entered and amended the judgment in the criminal case. Brown appealed that stating that the district court did not properly consider the 3553 Factors and his post sentencing conduct.

The Eleventh Circuit indicated that the standard of review in this case would be for “abuse of discretion.” The court then noted that prior precedent showed that when an “entire sentencing package” has been vacated then the court must revisit every part of the sentencing package. And this might require the defendant to be present. After reviewing their case law, the court came to the conclusion that a sentence modification qualifies as a critical stage and requires the defendant to be present if the following things are true:

“First, did the errors requiring the grant of habeas relief undermine the sentence as a whole? Second, will the sentencing court exercise significant discretion in modifying the defendant’s sentence, perhaps on questions the court was not called upon to consider at the original sentencing?”

If both of those things are true then the defendant must be brought back for a resentencing.

In this case, the district court vacated the sentence and filed an amended judgment stating that the sentence was vacated on the one and only count of conviction and modified the sentence without having a resentencing hearing. Brown’s new sentence was imposed under a different statutory provision and the only statutory basis for his sentence was no longer valid. That shows that his entire sentence was undermined. This means that the two prongs of the test were shown to be true and a resentencing hearing was required.

Further, during Brown’s original sentencing hearing the court discussed Brown’s convictions (to sentence him under the ACCA), and then stated “this is a minimum mandatory case” and sentenced him to the mandatory minimum of 15 years without discussing the presentence investigation report or the 3553 factors. Because the court relied on a mandatory minimum that no longer applied, the district court had not “made the necessary credibility determinations and exercised the necessary discretion to fashion a sentencing package which he has determined, in fact, is the appropriate penalty.” Because of this Brown’s presence at the resentencing hearing was required.

The Eleventh Circuit also determined that the way Brown was resentenced also showed that his presence was required. Brown’s corrected guideline range was 77 to 96 months. The court sentenced him to 120 months, which is a substantial upward variance. However, there was no justification for this in the statement of reasons or anywhere else. The Eleventh Circuit reasoned that Brown should have been present to guide the district court’s discretion before the court imposed an upward variance.

The court remanded the case back to the district court with instructions to have a resentencing hearing with Brown present with counsel. Nos. 16-14267 and 16-14284.


mandatory minimum

In United States v. Suarez, No. 16-41267, the Fifth Circuit remanded a sentence back to the District Court for failing to properly charge the jury in a case where a mandatory minimum was at issue.

Suarez was found with meth, drug-distributing items, a .380 pistol and a Winchester sawed-off shotgun that was disassembled with a round left in the chamber.  Police also found a sawed-off Ithaca shotgun in another room. Suarez was charged in Count Two with possession of the pistol and Winchester in furtherance of a drug crime under 924(c). Counts Three and Four charged him with unregistered possession of the Winchester and Ithaca shotguns. The proposed jury charge did not require the jury to specify which firearm supported guilt. Suarez did not object to this at trial. The jury found Suarez guilty and the PSI recommended 60 months on counts one, three and four and 120 months on Count Two to run consecutively to the other counts. The court indicated that it would have sentenced Suarez to a shorter term but for the ten-year mandatory minimum sentence that was applicable. (Count One was a drug conspiracy charge).

Suarez challenged his conviction to Count Two because the Court did not require the jury to unanimously determine which firearm formed the basis of the conviction. The court noted that because Suarez did not object to the instruction at trial then this would be reviewed for plain error (this means that Suarez would have to show “a clear or obvious legal error that affects his substantial rights and “seriously affect[s] the fairness, integrity, or public reputation of the judicial proceedings.”)

The court noted that Possession of a PARTICULAR type of firearm is not necessary for a 924(c)charge but IS necessary to tag someone with the 10 year minimum.  So, while this doesn’t impact his conviction, it may impact his sentence.

The court noted that for purposes of plain error,  A sentencing error is plain if it is contrary to Supreme Court or circuit precedent.  The error affects substantial rights if “there is ‘a reasonable probability that, but for the error, [the defendant] would have received a lesser sentence.’ ” [the court] may exercise [their]  discretion to remand  for resentencing if “the error ‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.”

The court stated that a mandatory minimum of 10 years is required if the defendant is found guilty of using a shotgun under 924(c). The court also noted that in United States v. O’Brien, the Supreme Court stated that a court couldn’t sentence someone to a mandatory minimum of thirty years unless the jury decided beyond a reasonable doubt that the firearm was a machine gun.  Moreover, in Alleyne v. United States, the court held that any fact issue that increases the mandatory minimum sentence had to be found beyond a reasonable doubt.

Overall, this means that the sentence on Count Two should not have been imposed unless the jury specifically found beyond a reasonable doubt that Suarez possessed a sawed-off shotgun in furtherance of a drug trafficking crime. Since this did not occur, one or more of the jurors could have failed to find that the Winchester was possessed in furtherance of a drug trafficking crime. That in itself is a plain sentencing error.

This error affected Suarez’ substantial rights because he received a sentence that the court said they would not have imposed except for their conclusion that a mandatory sentence was required, which again, was error. And the court noted that this error affects the fairness, integrity and public reputation of the judicial process. The court noted that this was true for a few reasons.

First, the court indicated that the Supreme Court, in Alleyne concluded that when there is a core crime and a fact triggering a higher mandatory minimum, that in essence, was constituting a new aggravated crime and each element of that crime had to be submitted to the jury.  In addition, the court indicated that the facts of this case mean that the Jury would have been able to “surely” find that Suarez possessed specifically  the Winchester in furtherance of the drug trafficking offense. The Fifth Circuit also said that this was ultimately a Sixth Amendment violation, not just a sentencing error. That is because Suarez would have been imprisoned for an offense that the jury never found that he committed. The sentencing of five additional years for a crime where there was no conviction is a sixth amendment violation.

The court vacated the 10 year sentence on Count Two and remanded the case back to the District Court for resentencing.  No. 16-41267.

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.

I have breaking news about two cases we have been watching very closely. Today, the Supreme Court decided Class v. United States, 16-424. At issue in Class was whether a guilty plea inherently waives a defendant’s right to challenge the constitutionality of his statute of conviction. The Supreme Court held today that a guilty plea does not waive the ability to challenge the statute of conviction on constitutional grounds.

In addition, yesterday the Fifth Circuit decided United States v. Herrold, 14-1317. In a hotly contested en banc decision (8-7), the Fifth Circuit held that burglary under Texas Penal Code 30.02 is not a “violent felony” for ACCA purposes.

These decisions have huge potential.




certiorari to the United States Court of Appeals for the District of Columbia Circuit

No. 16–424. Argued October 4, 2017—Decided February 21, 2018

A federal grand jury indicted petitioner, Rodney Class, for possessing firearms in his locked jeep, which was parked on the grounds of the United States Capitol in Washington, D. C. See 40 U. S. C. 5104(e)(1) (“An individual . . . may not carry . . . on the Grounds or in any of the Capitol Buildings a firearm”). Appearing pro se, Class asked the District Court to dismiss the indictment. He alleged that the statute, 5104(e), violates the Second Amendment and the Due Process Clause. After the District Court dismissed both claims, Class pleaded guilty to “Possession of a Firearm on U. S. Capitol Grounds, in violation of 40 U. S. C. 5104(e).” App. 30. A written plea agreement set forth the terms of Class’ guilty plea, including several categories of rights that he agreed to waive. The agreement said nothing about the right to challenge on direct appeal the constitutionality of the statute of conviction. After conducting a hearing pursuant to Rule 11(b) of the Federal Rules of Criminal Procedure, the District Court accepted Class’ guilty plea and sentenced him. Soon thereafter, Class sought to raise his constitutional claims on direct appeal. The Court of Appeals held that Class could not do so because, by pleading guilty, he had waived his constitutional claims.

Held: A guilty plea, by itself, does not bar a federal criminal defendant from challenging the constitutionality of his statute of conviction on direct appeal. Pp. 3–11.

(a) This holding flows directly from this Court’s prior decisions. Fifty years ago, in Haynes v. United States, the Court addressed a similar claim challenging the constitutionality of a criminal statute. Justice Harlan’s opinion for the Court stated that the defendant’s “plea of guilty did not, of course, waive his previous [constitutional] claim.” 390 U. S. 85 , n. 2. That clear statement reflects an understanding of the nature of guilty pleas that stretches, in broad outline, nearly 150 years. Subsequent decisions have elaborated upon it. In Blackledge v. Perry, 417 U. S. 21, the Court recognized that a guilty plea bars some “ ‘antecedent constitutional violations,’ ” related to events (such as grand jury proceedings) that “ ‘occu[r] prior to the entry of the guilty plea.’ ” Id., at 30 (quoting Tollett v. Henderson, 411 U. S. 258 –267). However, where the claim implicates “the very power of the State” to prosecute the defendant, a guilty plea cannot by itself bar it. 417 U. S., at 30. Likewise, in Menna v. New York, 423 U. S. 61, the Court held that because the defendant’s claim was that “the State may not convict [him] no matter how validly his factual guilt is established,” his “guilty plea, therefore, [did] not bar the claim.” Id., at 63, n. 2. In more recent years, the Court has reaffirmed the Menna-Blackledge doctrine’s basic teaching that “ ‘a plea of guilty to a charge does not waive a claim that—judged on its face—the charge is one which the State may not constitutionally prosecute.’ ” United States v. Broce, 488 U. S. 563 (quoting Menna, supra, at 63, n. 2). Pp. 3–7.

(b) In this case, Class neither expressly nor implicitly waived his constitutional claims by pleading guilty. As this Court understands them, the claims at issue here do not contradict the terms of the indictment or the written plea agreement and they can be resolved “on the basis of the existing record.” Broce, supra, at 575. Class challenges the Government’s power to criminalize his (admitted) conduct and thereby calls into question the Government’s power to “ ‘constitutionally prosecute’ ” him. Ibid. (quoting Menna, supra, at 61–62, n. 2). A guilty plea does not bar a direct appeal in these circumstances. Pp. 7–8.

(c) Federal Rule of Criminal Procedure 11(a)(2), which governs “conditional” guilty pleas, cannot resolve this case. By its own terms, the Rule does not say whether it sets forth the exclusive procedure for a defendant to preserve a constitutional claim following a guilty plea. And the Rule’s drafters acknowledged that the “Supreme Court has held that certain kinds of constitutional objections may be raised after a plea of guilty” and specifically stated that Rule 11(a)(2) “has no application” to the “kinds of constitutional objections” that may be raised under the “Menna-Blackledge doctrine.” Advisory Committee’s Notes on 1983 Amendments to Fed. Rule Crim. Proc. 11, 18 U. S. C. App., p. 912. Because the applicability of the Menna-Blackledge doctrine is at issue here, Rule 11(a)(2) cannot resolve this case. Pp. 8–10.

Reversed and remanded.

Breyer, J., delivered the opinion of the Court, in which Roberts, C. J., and Ginsburg, Sotomayor, Kagan, and Gorsuch, JJ., joined. Alito, J., filed a dissenting opinion, in which Kennedy and Thomas, JJ., joined.


In this case, the Fifth Circuit was tasked with determining whether burglary under Texas Penal Code 30.02(a)(1) and (3) are indivisible for the purpose of categorical analysis and if so, whether the two provisions are broader than the generic definition of burglary under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. 924(e)(1).

Herrold was found to be an ACCA eligible based on three prior convictions: (1) unlawful possession of LSD with intent to distribute; (2) burglary of a building; (3) burglary of a habitation. Herrold argued before the district court that none of the aforementioned priors qualified as ACCA-predicate offenses. The district court disagreed, but noted that Herrold had made “forceful arguments” that the enhancement should not apply and requested guidance from the Fifth Circuit on appeal. Herrold was sentenced to 211 months imprisonment with the ACCA enhancement.

On direct appeal, the Fifth Circuit affirmed Herrold’s ACCA sentence based on prior circuit precedent. The Supreme Court then vacated the Fifth Circuit’s judgment and remanded for consideration in light of Mathis v. United States. On remand, Herrold argued that Mathis foreclosed the possibility that his two Texas burglary convictions can serve as ACCA predicates. The Fifth Circuit again affirmed, this time on the basis of an earlier post-Mathis decision, United States v. Uribe. Herrold petitioned for rehearing en banc, which the Fifth Circuit subsequently granted.

In a highly contested 8-7 decision, the Fifth Circuit held that Texas Penal Code 30.02(a)(1) and (a)(3) are indivisible. “While the Texas burglary statute itself lacks any trait that the Supreme Court deemed relevant to the divisibility inquiry, Texas case law settles the question. Indeed, Texas courts have repeatedly held that a jury need not unanimously agree on whether Texas Penal Code 30.02(a)(1) or (a)(3) applies in order to sustain a conviction for burglary.”

The Fifth Circuit went on to note that the Uribe panel relied on different Texas state court decisions to reach the contrary conclusion. Ultimately, the court concluded that “the lower courts have fleshed out Day and Devaughn and told us what they mean in this precise context: jury unanimity, the issue that Mathis deems dispositive, is not required between Texas Penal Code 30.02(a)(1) and (a)(3).”

Having decided that the Texas burglary statute is indivisible, the court was next tasked with determining whether the state’s statute is broader than the generic ACCA definition. Because the statutes are indivisible, the court employed the categorical approach to examine the viability of Herrold’s two burglary convictions under the ACCA. Ultimately, the majority found the Texas statutes to be overly broad, thus holding that Texas burglary cannot be used as a “violent felony” predicate conviction for ACCA purposes.

Note: Class and Herrold are very important decisions that have great potential. I think it is very likely that the government will appeal the decision in Herrold, and we will have to wait and see if the Supreme Court will accept the case. In the interim, I will continue to keep you posted on any new developments.

minor role

In United States v. Carbajal, 16-4358, the Fourth Circuit reversed and remanded the case for resentencing concerning the Minor Role and explained the effect of a “clarifying amendment” handed down by the United States Sentencing Commission.

Carbajal was discovered while agents were investigating others. Carbajal was observed at an apartment several times and was seen carrying a cooler to the apartment on multiple occasions. Carbajal went in and out of the apartment often, and opened the door to let others in. Carbajal was not the listed lessee to the apartment. Carbajal was observed driving his vehicle to a nearby garage to meet Doval, another person involved in the conspiracy, and a woman that placed a cooler and a suitcase in the car. When Carbajal took the woman, Doval and the money back, they were all detained by law enforcement. The agents searched the car after having a dog alert the police to the presence of narcotics. The agents found 8.987 kilograms of cocaine in the cooler. The agents also searched the apartment where Carbajal frequented and found items that were used in the manufacturing and packaging drugs, but no furniture or living arrangements

Carbajal subsequently pled guilty to distribution of cocaine. At sentencing, Carbajal argued that he qualified for the two-level decrease for the minor role enhancement. However, the district court overruled his objection.

On appeal, Carbajal challenged the district court’s grant of a two-level enhancement for maintaining a premise, and the court’s denial of a two-level reduction for being a minor participant in the conspiracy. In arguing for the minor role reduction, Carbajal relied on Amendment 794 to the U.S. Sentencing Guidelines. The court observed that the Sentencing Commission noted that “a defendant who is convicted of a drug trafficking offense, whose participation in that offense was limited to transporting or storing drugs and who is accountable under 1B1.3 only for the quantity of drugs the defendant personally transported or stored may receive an adjustment under this guideline.”

The Fourth Circuit went on to note that their most recent published case on this matter was United States v. Powell, 680 F.3d 350 (4th Cir. 2012), which held that the “critical inquiry” was whether the defendant’s conduct is material or essential to committing the offense. The Powell court held that the district court had to “measure the defendant’s ‘individual acts and relative culpability against the elements of the offense of conviction.’”

The court then addressed the changes Amendment 794 brought to the Guidelines commentary for U.S.S.G. 3B1.2. The first change is that whether “a defendant performs an essential or indispensable role in the criminal activity is not determinative.” The second alteration is that the Commission clarified that a defendant should receive the reduction if he or she is “substantially less culpable than the average participant in the criminal activity.” Thus, the court must compare the defendant’s culpability to that of their codefendants in the specific criminal enterprise, not defendants who are convicted of the crime generally speaking. The third clarification is that the Commission added five factors for the courts to consider:

(i) the degree to which the defendant understood the scope and structure of the criminal activity;

(ii) the degree to which the defendant participated in planning or organizing the criminal activity;

(iii) the degree to which the defendant exercised decision-making authority or influenced the exercise of decision-making authority;

(iv) the nature and extent of the defendant’s participation in the commission of the criminal activity, including the acts the defendant performed and the responsibility and discretion the defendant had in performing those acts;

(v) the degree to which the defendant stood to benefit from the criminal activity.

The Fourth Circuit further held that Amendment 794 abrogated the decision in Powell. The court noted that Sentencing Commission has the power to override court precedent with an amendment to the guidelines. The court stated that “[I]f a clarifying amendment ‘conflicts with our precedent,’ we recognize that it has ‘the effect of changing the law in this circuit.”

Amendment 794 is a clarifying amendment because it resolved a split in the circuits and explains how the law should be applied.

Finally, the court explained that the five factors are not dispositive nor exclusive. But it is the defendant that bears the burden of defining the scope of the “criminal activity” by which he should be compared.

Here, the appellate court was unable to determine from the record whether Carbajal’s culpability was judged relative to the average participant in the conspiracy or if the court considered the factors in the commentary to § 3B1.2. Because appellate courts are not fact-finding courts, the Fourth Circuit determined the appropriate remedy was to reverse and remand the case back to the district court for re-sentencing so that the district court could properly decide whether Carbajal was entitled to a two-level reduction for a minor role in light of Amendment 794.

The Fourth Circuit vacated and remanded the sentence. No. 16-4358

Class v. United States Plea

Rodney Class was arrested and charged with federal possession of “readily accessible” firearms on the grounds of the U.S. Capitol. He pled guilty to this charge in federal district court. However, in Class’s plea agreement there was no express waiver of Class’s right to appeal his conviction. Class subsequently appealed his conviction on the grounds that the statute violated his Second Amendment right to bear arms and the statute was unconstitutionally vague.

The question before the Court was relatively short. Can Rodney Class appeal his conviction even though he pled guilty? Does the government’s plea agreement inherently bar these claims when making a plea deal or does Class and those like him need to expressly state in their plea agreement that they are reserving the right to appeal on certain grounds?

Class’s main contention in oral argument, argued by Jessica Amunson, is pretty simple. Because Class did not explicitly waive these two appeal charges, he is allowed to use them as an appeal. By the mere fact of pleading guilty, this did not waive those rights.

The government’s argument revolves around Rule 11 of the Federal Rules of Civil Procedure. Rule 11 deals with plea deals and plea agreements. The government citied the Advisory Committee notes of Rule 11, arguing that the writers intended that unconditional pleas of guilty “operate as a waiver of all non-jurisdictional claims. The problem is that Rule 11 has notoriously been amended many times over the years, confusing all courts of its true meaning.

One idea that was thrown around by every party, including the Justices, was the Blackledge-Menna doctrine. Blackledge-Menna are two cases from the 1970s. Class’s argument relies on this doctrine, which stated that criminal defendants were allowed to raise certain constitutional challenges on appeal despite the fact that they had already pled guilty. Blackledge dealt with a vindictive persecution claim and Menna allowed a defendant to bring up a double-jeopardy claim. Class argued that his Second Amendment claim would fall into the same lines as these claims. The government argued that while they do not disagree with Blackledge-Menna, those cases are only applied to those specific claims and the doctrine cannot be broaden.

Blackledge-Menna is not law, it is doctrine. So the Supreme Court traditionally would not want to issue an opinion based on doctrine alone. The Supreme Court likes tests to apply. Class argued that the test should be what Judge Henry Friendly coined many years ago on the 2nd Circuit Court of Appeals. A guilty plea does not waive an appeal of any constitutional ground that would prevent the state from obtaining a valid conviction.

From the transcript of the oral argument, the Justices collectively pushed against the government’s assertions. Justice Breyer’s comments late into the government’s time summed up many of the Justices opinions about when a defendant pleads guilty and the consequences of that plea. Just because a defendant pleads guilty to the crime at hand does not mean that they admit to the statute itself.

“But what you haven’t admitted is that the statute, for example, is a valid statue. You haven’t admitted that. And another thing you haven’t admitted, you haven’t admitted vindictive prosecution because I did it… but they’re prosecuting me for a bad reason, and they can’t do that.”

This is what Class is arguing. He is arguing that while he did possess firearms in a readily accessible area on Capitol grounds, the statute itself that forbids this act is not constitutional. From Justice Breyer’s argument, defendant Class should not be barred from claiming a constitutional violation just by pleading guilty.

Even more of the hardliners on criminal law fell in line with liberal Justice Breyer. Justice Gorsuch stated a similar idea when a defendant pleads guilty “you’re not admitting even to what the statute says; you’re admitting to what’s in the indictment.”

Class’s argument seems pretty solid. Just because a defendant pleads guilty, it shouldn’t bar a constitutional appeal if the plea agreement is silent on the issue. Plea agreements can be extremely broad and cover a lot of ground. There is a whole legal argument if those plea agreements are fair and legal themselves. Regardless, federal and state courts allow the government to offer plea agreements that bar appeals. It’s just a matter of sticking the clause into the agreement itself. In Class’s case, the government did not add a clause into the plea agreement.  

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.


From a border wall to a travel ban, the current occupant of the White House has not minced words about where he stands on United States immigration. Indeed, this focus on immigration law has put a spotlight on a case with substantial immigration ramifications that is currently pending before the United States Supreme Court. The case is Sessions v. Dimaya.

A. The History of the Dimaya Case

James Garcia Dimaya is a Philippines native who, at age 13, became a lawful permanent resident in the U.S. In 2007 and 2009, he was convicted of residential burglary. As a result, the U.S. government sought to deport him based on the fact that he committed an “aggravated felony,” which U.S. immigration law defines as any offense “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.”

When the Dimaya case reached the United States Court of Appeals for the Ninth Circuit, the court denied the Government’s attempt to deport Dimaya, holding that the definition quoted above was too vague to be enforced, i.e., it was void for vagueness. Thus, Dimaya was not deportable. The Ninth Circuit relied upon the Supreme Court’s holding in Johnson v. United States, which was a case in which a similar definition in a criminal statute was found to be unconstitutionally vague.

On certiorari from the Ninth Circuit, the Dimaya case was first argued before the Supreme Court in early 2017, when there were only eight justices on the Court. The case ended in a split decision. Accordingly, the case was reargued in October 2017 after Justice Gorsuch joined the Court.

Assuming the other justices have not changed their minds, the big question is: which way will Justice Gorsuch vote? Will he agree with Dimaya that the definition in the immigration law is unconstitutionally vague, or will he find for the Government that the definition can be interpreted and enforced?

B. My Opinion: Justice Gorsuch Will Follow Justice Scalia’s Rationale In Johnson and Find the Statutory Definition Unconstitutionally Vague.

I know that speculating on how a Supreme Court Justice will rule in any given case has as much certainty as predicting whether it will rain six months from now. However, in my opinion, I believe Justice Gorsuch will find the definition at issue in Dimaya unconstitutionally vague. I come to that conclusion for two reasons.

1. Justice Gorsuch Showed His Hand During Oral Argument.

Justice Gorsuch was an active questioner during oral argument, and he did not challenge both sides equally. Rather, the majority of his questions, even during the argument of Dimaya’s counsel, were focused on the weakness of the Government’s position that the definition was not vague.

With regard to whether criminal and civil statutes should be evaluated using different vagueness standards, Gorsuch went directly to the language of the Due Process Clause. He used the Clause to assert that the Constitution makes no distinction between criminal and civil statutes. He also noted that the sanction in the civil (immigration) context for Dimaya – deportation – is more severe than some criminal penalties.

Gorsuch then pivoted, while questioning the Government, to the subject of separation of powers. He put emphasis on the point that the vagueness doctrine is important because judges should not engage in lawmaking when a statute is unclear. In other words, if a statute is vague such that a judge cannot understand its meaning, then the judge should stop and not legislate. In that vein, Gorsuch mused:

I wonder here how I would go about determining what the ordinary case is . . . I would probably want to have statistics and evidentiary hearings and hear experts on that question. And that sounds to me a lot like what a legislative committee might do. And if I can’t distinguish my job from a legislative committee’s work, am I not verging on the separation of powers problem?

(Oral Argument 19-20 to 20-7).

Also very revealing was the fact that Mr. Dimaya’s counsel began his argument by agreeing with Justice Gorsuch on the separation of powers point. Specifically, counsel stated:

Let me begin – begin with Justice Gorsuch’s central point. Justice Gorsuch is right. This is not a job that Congress can appropriately delegate to the courts and to enforcement officials on the ground.

(Oral Argument 31-18 to -22) (emphasis added).

As Dimaya’s counsel continued, Gorsuch appeared to be largely in agreement. At one point, Gorsuch asked Dimaya’s counsel to reinforce his use of the Due Process Clause. In particular, Gorsuch asked whether the Clause supports the position that the severity of the penalty is more important than a court-determined line between criminal and civil statutes for purposes of the vagueness doctrine.

JUSTICE GORSUCH: What do you think about this line? Life, liberty, or property.
COUNSEL FOR DIMAYA: That’s a great line.
JUSTICE GORSUCH: It’s right out of the text of the Due Process Clause itself.
COUNSEL FOR DIMAYA: Yes, that’s a great line: Life, liberty, or property.

(Oral Argument 43-12 to -18).

At the close of the argument, the Government’s counsel gave a three-minute rebuttal. Again, Justice Gorsuch questioned the Government’s counsel on the separation of powers issue.

In sum, Justice Gorsuch seemed to tip his hand during oral argument. He demonstrated his originalist/textualist bona fides by going to the language of the Constitution to undermine the notion that criminal and civil statutes should have a different vagueness standard. Also, he put forth a strong separation of powers rationale, essentially stating that Congress has a responsibility to draft clear statutes so courts do not engage in lawmaking. Finally, the tenor of Justice Gorsuch’s questioning during oral argument showed concern with the Government’s position while in virtual agreement with Dimaya’s position. If the oral argument is any gauge of which way Justice Gorsuch will go, then it appears that Dimaya’s position gets Gorsuch’s vote.

2. Justice Scalia Authored Johnson.

Justice Gorsuch has indicated to scholars and pundits alike that he is an originalist and a textualist like Justice Scalia. He appears to share Scalia’s jurisprudence of emphasizing the importance of the Constitution’s text itself, and the original intent of those who wrote it. In fact, it is difficult to read an article about Justice Gorsuch in which he is not characterized as the next Justice Scalia.

Moreover, Justice Scalia authored the majority opinion in Johnson, upon which the Ninth Circuit in Dimaya relied. Scalia’s Johnson opinion held that a statute similar to the one in Dimaya was unconstitutionally vague. Indeed, the statute at issue in Johnson had come before the Court on several occasions. Each time, Scalia wrote a dissent urging the Court to find the statute void for vagueness. Not surprisingly, Scalia’s reasoning in all of those cases was grounded in the Due Process Clause, which Justice Gorsuch mentioned several times during oral argument.

Accordingly, it would be highly unusual for Justice Gorsuch to disagree with Justice Scalia’s Johnson opinion. It seems clear that Gorsuch views the law through the prism of Scalia’s jurisprudence.

To conclude, a decision in the Dimaya case is expected within the month. My money is on Justice Gorsuch to break the Court’s stalemate and find the statutory definition at issue void for vagueness in the style of Scalia’s Johnson decision. Perhaps, Gorsuch will even be asked to write the majority opinion.

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.

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