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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

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. 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.

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.