Friday, February 20, 2009
Guzman: ok to require address in Mexico on supervised release
In U.S. v. Guzman, No. 08-14077 (Feb. 18, 2009), the Court held that the district court did not exceed its authority when it imposed a special condition of supervised release, requiring Guzman to inform the probation officer in writing of his address in Mexico within 72 hours of his deportation from the United States. The Court found that the purpose of such a condition fell within the purposes of 18 U.S.C. § 3553(a). "Ensuring that Guzman remained in Mexico was strongly related to his unlawful re-entry offense, was specifically designed to deter him from unlawfully re-entering again, and, in this respect, would help protect the public from any future attempt by Guzman to unlawfully re-enter the country."
Harrision: Fleeing Police Lights & Siren not "Violent Felony"
In U.S. v. Harrison, No. 08-12636 (Feb. 19, 2009), the Court (Hull, Wilson, Hill, JJ.) held that a violation of subsection 2 of Florida’s willful fleeing statute, Fla. Stat. § 316.1935(2) is not a "violent felony" for purposes of the 15-year mandatory minimum of 18 U.S.C. § 924(e), applicable to offenders who are convicted under 18 U.S.C. § 922(g) of being felons in unlawful possession of a firearm and who have three prior convictions for violent felonies.
The Court discussed at length how the Supreme Court’s decisions in Begay, James and Chambers had changed the legal landscape. The Court noted that Chambers has already spawned a reconsideration of circuit precedent involving escape crimes.
The Court emphasized that subsection 2 of the Florida statute – unlike subsection 3 – did not contemplate that the offender had any wanton disregard for the safety of persons. Rather, it only involved fleeing after a police vehicle had activated its lights and sirens. This kind of offender did not have the propensity for future violent conduct that the statute contemplated when it triggered a 15-year minimum for those who have three prior "violent felonies."
The Court discussed at length how the Supreme Court’s decisions in Begay, James and Chambers had changed the legal landscape. The Court noted that Chambers has already spawned a reconsideration of circuit precedent involving escape crimes.
The Court emphasized that subsection 2 of the Florida statute – unlike subsection 3 – did not contemplate that the offender had any wanton disregard for the safety of persons. Rather, it only involved fleeing after a police vehicle had activated its lights and sirens. This kind of offender did not have the propensity for future violent conduct that the statute contemplated when it triggered a 15-year minimum for those who have three prior "violent felonies."
Friday, February 13, 2009
Vasquez: No Authority to Vary from Career Offender Guidelines
In U.S. v. Vasquez, No. 08-10671 (Feb. 12, 2009), the Court held that a sentencing court lacks the authority to vary from the Guidelines’ career offender provision on the ground of a "disagreement" with this Guideline.
The Court first held that the appeal waiver provision of Vasquez’ plea agreement did not waive his appeal of his sentence. The provision provided that there was no waiver if the government appealed the sentence. The government did appeal Vasquez’ original sentence, but not the second sentence imposed on resentencing. Viewing the appeal waiver provision as ambiguous in this situation, the Court decided it did not operate to waive Vasquez’ appeal.
The Court noted that its prior decision in U.S. v. Williams, 456 F.3d 1353 (11th Cir. 2006) held that the career offender Guidelines "encapsulate" the congressional policy articulated in 28 U.S.C. § 994(h). Thus, it was impermissible for a sentencing court to vary from the career offender guidelines. Williams also held that it was impermissible to depart from the crack offender guidelines, and this portion of Williams was overruled by Kimbrough. But Kimbrough, stated that crack guidelines were different from career offender guidelines, because the career offender guidelines arose out of a separate statute. Therefore, the career offender portion of Williams remained binding law in the Eleventh Circuit. The Court relied on U.S. v. Vega-Castillo, 540 F.3d 1235 (11th Cir. 2008) (2-1, Barkett, J., dissenting), which had held that the fast-track program disparity issue was unaffected by Kimbrough.
[Vasquez appears to conflict with U.S. v. Sanchez, 517 F.3d 651 (2d Cir. 2008), which held that a district court has authority to vary from the career offender guidelines].
The Court first held that the appeal waiver provision of Vasquez’ plea agreement did not waive his appeal of his sentence. The provision provided that there was no waiver if the government appealed the sentence. The government did appeal Vasquez’ original sentence, but not the second sentence imposed on resentencing. Viewing the appeal waiver provision as ambiguous in this situation, the Court decided it did not operate to waive Vasquez’ appeal.
The Court noted that its prior decision in U.S. v. Williams, 456 F.3d 1353 (11th Cir. 2006) held that the career offender Guidelines "encapsulate" the congressional policy articulated in 28 U.S.C. § 994(h). Thus, it was impermissible for a sentencing court to vary from the career offender guidelines. Williams also held that it was impermissible to depart from the crack offender guidelines, and this portion of Williams was overruled by Kimbrough. But Kimbrough, stated that crack guidelines were different from career offender guidelines, because the career offender guidelines arose out of a separate statute. Therefore, the career offender portion of Williams remained binding law in the Eleventh Circuit. The Court relied on U.S. v. Vega-Castillo, 540 F.3d 1235 (11th Cir. 2008) (2-1, Barkett, J., dissenting), which had held that the fast-track program disparity issue was unaffected by Kimbrough.
[Vasquez appears to conflict with U.S. v. Sanchez, 517 F.3d 651 (2d Cir. 2008), which held that a district court has authority to vary from the career offender guidelines].
Williams: Failure to file anything with Magistrate Judge can be fatal
In Williams v. McNeil, No. 08-11259 (Feb. 10, 2009), the Court affirmed the denial of habeas relief. After the issue of the timeliness of his habeas petition was assigned to a Magistrate Judge, Williams neglected to file any memorandum on this issue with the Magistrate Judge. The Magistrate Issue ruled that McNeil’s petition was untimely. Williams then sought to challenge this ruling in the district court. The district court declined to reach Williams’ arguments, because he had failed to brief the issue before the Magistrate Judge. The district court denied habeas relief.
Affirming, the Court of Appeals joined the majority of circuits to have considered the issue, and ruled that when a party fails to brief an issue before a Magistrate Judge, the district court has the discretion to simply adopt the Magistrate Judge’s report and recommendation on the basis of this waiver.
Affirming, the Court of Appeals joined the majority of circuits to have considered the issue, and ruled that when a party fails to brief an issue before a Magistrate Judge, the district court has the discretion to simply adopt the Magistrate Judge’s report and recommendation on the basis of this waiver.
Williams: 3582(c)(2) judgment reversed for failure to consider 3553(a) factors
In U.S. v. Williams, No. 08-11361 (Feb. 9, 2009), the Court reversed the denial of an 18 U.S.C. § 3582(c)(2) sentence reduction to a Georgia crack cocaine offender, because the district court at resentencing, in reducing sentence by less than the two-level offense level reduction authorized by the crack cocaine sentence reduction Amendment, failed to address the 18 U.S.C. § 3553(a) factors. The Court noted that the Guideline commentary required the Court to consider the factors in § 3553(a). So did Eleventh Circuit precedent. Accordingly, the Court vacated the judgment and remanded for resentencing.
Tompkins: No Certificate of Appealability for Death-Row Inmate
In Tompkins v. Sec., Dep’t of Corrections, No. 09-10022 (Feb. 9, 2009), the Court denied habeas relief to a Florida inmate sentenced to death for a 25-year old murder.
Tompkins argued that his latest § 2254 motion should not be considered "second or successive," and should therefore not require a certificate of appealability, because Panetti v. Quaterman’s 2007 holding that a death-row inmate’s claim that he was incompetent for execution did not trigger the "second or successive" bar, because this claim was not ripe until the inmate was subject to execution. Tompkins sought to extent Panetti to situations, like his, where a habeas claim rested on evidence that was newly discovered after trial but before execution. The Court rejected this argument. The Court noted that the statute expressly provides for "newly discovered" evidence claims. Consequently, Tompkins did not qualify for a certificate of appealability
The Court also rejected the argument that Tompkins’ claim that his execution was cruel and unusual because the length of his stay on death row. The Court noted that Circuit precedent squarely foreclosed such an Eight Amendment claim. Therefore no certificate of appealability could issue on this claim too.
Tompkins argued that his latest § 2254 motion should not be considered "second or successive," and should therefore not require a certificate of appealability, because Panetti v. Quaterman’s 2007 holding that a death-row inmate’s claim that he was incompetent for execution did not trigger the "second or successive" bar, because this claim was not ripe until the inmate was subject to execution. Tompkins sought to extent Panetti to situations, like his, where a habeas claim rested on evidence that was newly discovered after trial but before execution. The Court rejected this argument. The Court noted that the statute expressly provides for "newly discovered" evidence claims. Consequently, Tompkins did not qualify for a certificate of appealability
The Court also rejected the argument that Tompkins’ claim that his execution was cruel and unusual because the length of his stay on death row. The Court noted that Circuit precedent squarely foreclosed such an Eight Amendment claim. Therefore no certificate of appealability could issue on this claim too.
Tuesday, February 10, 2009
Whisenant: No Actual Bias of Judge
In Whisenhant v. Allen, No. 04-15810 (Feb. 3, 2009), the Court affirmed the denial of habeas relief to an Alabama death row inmate convicted of a 1976 murder.
The Court rejected the argument that counsel was ineffective for failing to present an insanity defense. In the circumstances, counsel made a "strategic" choice.
The Court also rejected the argument that a Brady violation occurred, concluding that the suppressed documents were not material. The Court noted that the marginal value added of the reports at issue was insufficient.
The Court further rejected a claim of prosecutorial misconduct, finding that the closing argument did not misrepresent the testimony.
The Court also rejected claims of actual bias on the part of the state judge who presided over the trial.
The Court rejected the argument that counsel was ineffective for failing to present an insanity defense. In the circumstances, counsel made a "strategic" choice.
The Court also rejected the argument that a Brady violation occurred, concluding that the suppressed documents were not material. The Court noted that the marginal value added of the reports at issue was insufficient.
The Court further rejected a claim of prosecutorial misconduct, finding that the closing argument did not misrepresent the testimony.
The Court also rejected claims of actual bias on the part of the state judge who presided over the trial.
Farias-Gonzalez: Identity Not Suppressible
In U.S. v. Farias-Gonzalez, No. 08-10508 (Feb. 3, 2009), the Court held that "identity-related evidence," i.e., evidence of who the defendant is, obtained after an unconstitutional search and seizure, is not suppressible in a criminal prosecution.
The Court assumed arguendo that a Fourth Amendment violation occurred when the defendant was told to lift his shirt, revealing identifying gang marks. The Court noted, however, that applying the cost-benefit analysis of the exclusionary rule, the exclusion of identity-related evidence is not justified, because the deterrence benefits do not outweigh the social costs.
Permitting a defendant to hide who he is would undermine the administration of the criminal justice system, and preclude sentence enhancements based on prior criminal history. Moreover, the deterrent effect of preclusion is minimal, because there is little point in deterring the police from asking a suspect to identify himself, and the identity evidence can be obtained by other means, that is, without implicating the Fourth Amendment. For the same reason, the Court denied the defendant’s motion to suppress his alien file.
The Court assumed arguendo that a Fourth Amendment violation occurred when the defendant was told to lift his shirt, revealing identifying gang marks. The Court noted, however, that applying the cost-benefit analysis of the exclusionary rule, the exclusion of identity-related evidence is not justified, because the deterrence benefits do not outweigh the social costs.
Permitting a defendant to hide who he is would undermine the administration of the criminal justice system, and preclude sentence enhancements based on prior criminal history. Moreover, the deterrent effect of preclusion is minimal, because there is little point in deterring the police from asking a suspect to identify himself, and the identity evidence can be obtained by other means, that is, without implicating the Fourth Amendment. For the same reason, the Court denied the defendant’s motion to suppress his alien file.
Pace: Failure to Investigate Crack Addiction Not Ineffective
In Pace v. McNeil, No. 07-15528 (Feb. 3, 2008), the Court affirmed the denial of habeas relief to a Florida death-row inmate convicted of a 1988 murder.
The Court rejected Pace’s claim of ineffective assistance of counsel. Pace claimed that counsel failed to adequately investigate Pace’s addiction to crack cocaine. The Court noted that Pace told defense counsel that he was not under the influence of crack cocaine at the time he committed the murder. Further, a "crack cocaine" defense was a double-edged sword.
The Court rejected Pace’s claim of ineffective assistance of counsel. Pace claimed that counsel failed to adequately investigate Pace’s addiction to crack cocaine. The Court noted that Pace told defense counsel that he was not under the influence of crack cocaine at the time he committed the murder. Further, a "crack cocaine" defense was a double-edged sword.
Svete: Brown Overruled; Fraud Aimed at Gullible is Actionable
In U.S. v. Svete, No. 05-13809 (Feb. 2, 2009) (en banc), the Court, reversing U.S. v. Brown, 79 F.3d 1550 (11th Cir. 1996), held that proof of mail fraud does not require proof that a scheme is capable of deceiving a reasonably prudent person. Schemes aimed at the gullible or improvident are also prohibited.
The Court relied on the settled understanding of the reach of the mail fraud statute (which was broader than the common law fraud prohibition), on Neder v. U.S.’s discussion of materiality, and on the fact that Brown’s "ordinary prudence" element was rejected by all other circuits.
Consequently, the district court did not err when it declined to give the jury the requested Brown instruction regarding the requirement of ordinary prudence on the part of the victim. The Court upheld the fraud convictions.
The Court relied on the settled understanding of the reach of the mail fraud statute (which was broader than the common law fraud prohibition), on Neder v. U.S.’s discussion of materiality, and on the fact that Brown’s "ordinary prudence" element was rejected by all other circuits.
Consequently, the district court did not err when it declined to give the jury the requested Brown instruction regarding the requirement of ordinary prudence on the part of the victim. The Court upheld the fraud convictions.
Friday, February 06, 2009
Melvin: No discretion to reduce more than 2 levels for crack offenders
In U.S. v. Melvin, No. 08-13497 (Feb. 3, 2008) the Court held that sentencing courts are not authorized to grant a sentence reduction greater than the two-level reduction provided by the Sentencing Commission for crack cocaine offenders eligible under its Amendment 706.
The Court noted that the sentence reduction statute required sentence reductions to be consistent with the policy statements of the Commission. Here, the Commission’s policy statement limited the reduction to two levels. The Court rejected the argument that the policy statement was advisory, pointing out that sentence reduction proceedings are not full de novo sentencings. In addition, Booker did not excise § 3582(c)(2) when it made the guidelines advisory. Further, since the policy statement did not mandate a sentence reduction, it was not mandatory, and therefore could not run afoul of Booker. Finally, Kimbrough did not mention § 3582(c)(2), and therefore was inapplicable.
The Court noted that the sentence reduction statute required sentence reductions to be consistent with the policy statements of the Commission. Here, the Commission’s policy statement limited the reduction to two levels. The Court rejected the argument that the policy statement was advisory, pointing out that sentence reduction proceedings are not full de novo sentencings. In addition, Booker did not excise § 3582(c)(2) when it made the guidelines advisory. Further, since the policy statement did not mandate a sentence reduction, it was not mandatory, and therefore could not run afoul of Booker. Finally, Kimbrough did not mention § 3582(c)(2), and therefore was inapplicable.
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