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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.

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 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.

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.