In Smith v. Massachusetts, No. 03-8661 (Feb. 22, 2005), the Supreme Court held that Double Jeopardy principles barred a trial judge, after granting a motion finding insufficient evidence supported a gun count against a defendant when the prosecution rested its case, to change his mind and reconsider the issue after the defense rested.
The Court noted that the trial judge’s ruling on the defense motion regarding the insufficiency of the evidence was in effect an acquittal. The ruling resolved some of the factual elements of the offense charged. And even if the jury was the primary factfinder in the case, the trial judge still resolve factual issues when ruling on Rule 29-type motion.
The Court found that the acquittal triggered Double Jeopardy protection. First, the prosecution, after the ruling, did not make or reserve a motion for reconsideration, or seek a continuance. Further, the Massachusetts rules of procedure did not authorize the trial court to defer ruling on the motion. In addition, a defendant is prejudiced when the trial continues and he labors under the mistaken impression that he does not face a risk of conviction as to a certain count. This mistaken impression could lead the defendant to present inadvisable defenses, for example, admitting guilt on the acquitted count. It could also impact how co-defendants present their defense. The Court explained: "The Double Jeopardy Clause’s guarantee cannot be allowed to become a potential snare for those who reasonably rely upon it. If, after a facially unqualified midtrial dismissal of one count, the trial has proceeded to the defendant’s introduction of evidence, the acquittal must be treated as final, unless the availability of reconsideration has been plainly established by pre-existing rule or case authority." The Court noted the dissent’s contention that the defendant suffered no prejudice in this case when the judge reconsidered his ruling, but stated: "requiring someone to defend against a charge of which he has already been acquitted is prejudice per se for purposes of the Double Jeopardy Clause – even when the acquittal was erroneous."
Monday, February 28, 2005
Duncan: No plain error despite acquittal
In U.S. v. Duncan, No. 03-15315 (Feb. 24, 2005), the Court (Anderson, Birch & Land b.d.), vacating its prior published opinion, held that the defendant could not satisfy the "substantial rights" third prong of "plain error" because he could not show that he would have received a lesser sentence but for the Booker error of sentencing him under a mandatory regime. The court also rejected the defendant’s "creative" ex post facto argument.
In an opening footnote, the Court noted that the defendant was "not entitled" to have the Court address challenges to enhancements under Apprendi other than those raised in his initial brief, citing U.S. v. Levy, 379 F.3d 1241 (11th Cir. 2004). [Query: can one argue that because Booker, unlike Apprendi, is the type of intervening change in controlling law dictating a different result that a district court must consider nothwithstanding the "law of the case," Booker, unlike Apprendi, is not waived by the failure to raise it in an initial brief on direct appeal.]
Citing U.S. v. Rodriguez, 2005 WL 272952 (11th Cir. Feb. 4, 2005), the Court reiterated that Booker error consists not of enhancements based on judge, not jury, findings, but on the use of a mandatory Guidelines regime. The Court noted that Judge Breyer’s portion of Booker, which made the Guidelines advisory, "essentially changes what is authorized by a jury verdict – from the sentence that was authorized by mandatory Guidelines to the sentence that is authorized by the U.S. Code." The Court noted that the maximum sentence for Duncan’s offense was life. Hence, his actual life sentence did not exceed the maximum.
Further, Duncan could not show an adverse impact on his "substantial rights." The Court recognized that Duncan had been sentenced on the basis of a greater drug quantity than provided in the jury’s special verdict. However, the Court noted that, post-Booker, it is still permissible, under an advisory regime, for a judge to increase a sentence based on acquitted conduct. The Court noted U.S. v. Watts, 519 U.S. 148 (1997) and stated: "Booker does not suggest that the consideration of acquitted conduct violates the Sixth Amendment as long as the judge does not impose a sentence that exceeds what is authorized by the jury’s verdict." [Query: how can an acquittal, post-Booker, be construed to "authorize" any increment in punishment?]
Rejecting the views of other circuits, the Court noted that plain error analysis must apply the remedy portion of Booker retroactively. The Court found no discussion of plain error in Booker and did not read an implied finding of plain error in the disposition of the case. The Court found that Duncan could not meet the third prong of plain error because, as he admitted, there was nothing in the record to suggest that the defendant would have imposed a lower sentence under an advisory system.
Finally, the Court rejected the ex post facto argument that Booker could not be applied retrospectively to increase the statutory maximum. The Court pointed out that in the U.S. Code life was the maximum punishment at the time Duncan committed his offense. Thus, the U.S. Code gave Duncan fair warning of the potential punishment for his offense.
In an opening footnote, the Court noted that the defendant was "not entitled" to have the Court address challenges to enhancements under Apprendi other than those raised in his initial brief, citing U.S. v. Levy, 379 F.3d 1241 (11th Cir. 2004). [Query: can one argue that because Booker, unlike Apprendi, is the type of intervening change in controlling law dictating a different result that a district court must consider nothwithstanding the "law of the case," Booker, unlike Apprendi, is not waived by the failure to raise it in an initial brief on direct appeal.]
Citing U.S. v. Rodriguez, 2005 WL 272952 (11th Cir. Feb. 4, 2005), the Court reiterated that Booker error consists not of enhancements based on judge, not jury, findings, but on the use of a mandatory Guidelines regime. The Court noted that Judge Breyer’s portion of Booker, which made the Guidelines advisory, "essentially changes what is authorized by a jury verdict – from the sentence that was authorized by mandatory Guidelines to the sentence that is authorized by the U.S. Code." The Court noted that the maximum sentence for Duncan’s offense was life. Hence, his actual life sentence did not exceed the maximum.
Further, Duncan could not show an adverse impact on his "substantial rights." The Court recognized that Duncan had been sentenced on the basis of a greater drug quantity than provided in the jury’s special verdict. However, the Court noted that, post-Booker, it is still permissible, under an advisory regime, for a judge to increase a sentence based on acquitted conduct. The Court noted U.S. v. Watts, 519 U.S. 148 (1997) and stated: "Booker does not suggest that the consideration of acquitted conduct violates the Sixth Amendment as long as the judge does not impose a sentence that exceeds what is authorized by the jury’s verdict." [Query: how can an acquittal, post-Booker, be construed to "authorize" any increment in punishment?]
Rejecting the views of other circuits, the Court noted that plain error analysis must apply the remedy portion of Booker retroactively. The Court found no discussion of plain error in Booker and did not read an implied finding of plain error in the disposition of the case. The Court found that Duncan could not meet the third prong of plain error because, as he admitted, there was nothing in the record to suggest that the defendant would have imposed a lower sentence under an advisory system.
Finally, the Court rejected the ex post facto argument that Booker could not be applied retrospectively to increase the statutory maximum. The Court pointed out that in the U.S. Code life was the maximum punishment at the time Duncan committed his offense. Thus, the U.S. Code gave Duncan fair warning of the potential punishment for his offense.
Booker plain error satisfied!
In U.S. v. Shelton, No. 04-12602 (Feb. 25, 2005), the Court (Carnes, Hull, Marcus) concluded that no Sixth Amendmetn Booker violations occurred during sentencing, but remanded for resentencing because the district court erred in sentencing under a mandatory Guidelines regime, and the defendant established a reasonable probability that the district court would have imposed a lesser sentence but for the mandatory Guidelines regime.
The Court noted that after the defendant pled guilty to crack cocaine trafficking and § 924(c) charges, the sentencing court "expressed its disapproval of the [190-month] sentence." The sentencing court commented that Shelton’s sentence was "very, very severe." The sentencing court noted that "unfortunately" the Guidelines criminal-history calculation took into account each of the defendant’s past charges and do not take into account the fact that the sentences imposed on these charges were short as a result of such factors as the youth of the defendant or the amount of drugs involved. The district court later noted that Congress had taken "a very, very hard stance when it comes to guns and drugs," and most significantly indicated that the most lenient sentence it could impose, a sentence at the low end of the Guidelines range, was "more than [was] appropriate in this situation."
Reviewing the issues for plain error (Shelton raised Booker issue for the first time in his initial brief), the Court found no error in the district court’s reliance on prior convictions to increase the defendant’s sentence, noting that Almendarez-Torres remains good law.
The Court also found no error in the sentencing court’s reliance on drug quantities no alleged in the indictment, pointing out that the defendant admitted to these drug quantities at his plea colloquy, and citing U.S. v. Frye, 2005 WL 315563 (11th Cir. Feb. 10, 2005).
Emphasizing that the defendant timely raised his Booker issues in his initial brief on direct appeal, the Court found error in the reliance on mandatory Guidelines: "Although the district court followed the correct sentencing procedure when it sentenced Shelton, the Supreme Court has now excised the mandatory nature of the Guidelines in Booker." The error is now "plain" in light of Booker. Finally, the error affected the defendant’s substantial rights, because the sentencing court "expressed its view several times that the sentence required by the Guidelines was too severe, and noted that "unfortunately" the criminal history computation overstated the defendant’s criminal background. Further, the court sentenced the defendant to the bottom of the Guidelines range. Thus, the defendant established a "reasonable probability" of a lesser sentence under a non-mandatory system.
The Court concluded that the fourth prong of plain error was also met, because the error seriously affected the fairness integrity or public reputation of judicial proceedings. The Court distinguished U.S. v. Curtis, 380 F.3d 1308 (11th Cir. 2004), which had held that the fourth prong of plain error was not satisfied by a Blakely error, noting that this portion of Curtis was an "alternative ruling," that Curtis had found no "substantial rights" impact (unlike Shelton), and that the Curtis panel had assumed that the error merely involved a Sixth Amendment violation, not the use of a mandatory system, as Booker provided.
The Court noted that after the defendant pled guilty to crack cocaine trafficking and § 924(c) charges, the sentencing court "expressed its disapproval of the [190-month] sentence." The sentencing court commented that Shelton’s sentence was "very, very severe." The sentencing court noted that "unfortunately" the Guidelines criminal-history calculation took into account each of the defendant’s past charges and do not take into account the fact that the sentences imposed on these charges were short as a result of such factors as the youth of the defendant or the amount of drugs involved. The district court later noted that Congress had taken "a very, very hard stance when it comes to guns and drugs," and most significantly indicated that the most lenient sentence it could impose, a sentence at the low end of the Guidelines range, was "more than [was] appropriate in this situation."
Reviewing the issues for plain error (Shelton raised Booker issue for the first time in his initial brief), the Court found no error in the district court’s reliance on prior convictions to increase the defendant’s sentence, noting that Almendarez-Torres remains good law.
The Court also found no error in the sentencing court’s reliance on drug quantities no alleged in the indictment, pointing out that the defendant admitted to these drug quantities at his plea colloquy, and citing U.S. v. Frye, 2005 WL 315563 (11th Cir. Feb. 10, 2005).
Emphasizing that the defendant timely raised his Booker issues in his initial brief on direct appeal, the Court found error in the reliance on mandatory Guidelines: "Although the district court followed the correct sentencing procedure when it sentenced Shelton, the Supreme Court has now excised the mandatory nature of the Guidelines in Booker." The error is now "plain" in light of Booker. Finally, the error affected the defendant’s substantial rights, because the sentencing court "expressed its view several times that the sentence required by the Guidelines was too severe, and noted that "unfortunately" the criminal history computation overstated the defendant’s criminal background. Further, the court sentenced the defendant to the bottom of the Guidelines range. Thus, the defendant established a "reasonable probability" of a lesser sentence under a non-mandatory system.
The Court concluded that the fourth prong of plain error was also met, because the error seriously affected the fairness integrity or public reputation of judicial proceedings. The Court distinguished U.S. v. Curtis, 380 F.3d 1308 (11th Cir. 2004), which had held that the fourth prong of plain error was not satisfied by a Blakely error, noting that this portion of Curtis was an "alternative ruling," that Curtis had found no "substantial rights" impact (unlike Shelton), and that the Curtis panel had assumed that the error merely involved a Sixth Amendment violation, not the use of a mandatory system, as Booker provided.
Thursday, February 17, 2005
Booker not retroactive for 2255
In Varela v. U.S., No. 04-11725 (Feb. 17, 2005), the Court (Birch, Barkett, Hull) held that Blakely v. Washington, and, by extension, Booker, is not retroactive to cases on collateral review pursuant to Teague v. Lane, 489 U.S. 288 (1989).
Varela, whose conviction became final on May 15, 2000 (Apprendi was decided on June 26, 2000), brought a § 2255 motion challenging his sentence under Apprendi. The district court denied the motion, and, on appeal, the Eleventh Circuit granted a motion for a certificate of appealability to decide whether Blakely (now Booker) could apply retroactively.
Varela argued that Blakely (now Booker) should apply retroactively because its rule is "implicit in the concept of ordered liberty," and therefore qualified as "one of those very cases that should be determined to be retroactive to matters on collateral attack."
Citing Schriro v. Summerlin, 124 S.Ct. 2519 (2004), which analyzed the Ring rule under Teague, the Court noted that, as in Schriro, the rule announced in Booker was a "prototypical procedural rule." The jury vs. judge rule was not a watershed rule of criminal procedure. The Court joined McReynolds v. U.S., 2005 WL 237642 (7th Cir. Feb. 2, 2005) in concluding that Booker does not apply retroactively to cases on collateral review. The Court concluded: "Booker’s constitutional rule falls squarely under the category of new rules of criminal procedure that do not apply retroactively to § 2255 cases on collateral review."
Query: Is it still possible to argue, in light of Varela, in a § 2255, that Blakely and Booker do not announce a "new" rule. Note that Ring announced a new rule because it overruled Walton v. Arizona. But Blakely and Booker, arguably, merely applied the old Apprendi rule.
Also, Varela’s conviction became final pre-Apprendi. But what about defendants whose convictions became final after Apprendi (of after Blakely): for post-Apprendi defendants, is there any "new" rule in Blakely or Booker? And what about the distinction that in Ring, the defendant still had the benefit of a beyond-a-reasonable-doubt standard, unlike the defendant in Varela? And what of the substantive law change wrought by Booker, not addressed in Varela?
Varela, whose conviction became final on May 15, 2000 (Apprendi was decided on June 26, 2000), brought a § 2255 motion challenging his sentence under Apprendi. The district court denied the motion, and, on appeal, the Eleventh Circuit granted a motion for a certificate of appealability to decide whether Blakely (now Booker) could apply retroactively.
Varela argued that Blakely (now Booker) should apply retroactively because its rule is "implicit in the concept of ordered liberty," and therefore qualified as "one of those very cases that should be determined to be retroactive to matters on collateral attack."
Citing Schriro v. Summerlin, 124 S.Ct. 2519 (2004), which analyzed the Ring rule under Teague, the Court noted that, as in Schriro, the rule announced in Booker was a "prototypical procedural rule." The jury vs. judge rule was not a watershed rule of criminal procedure. The Court joined McReynolds v. U.S., 2005 WL 237642 (7th Cir. Feb. 2, 2005) in concluding that Booker does not apply retroactively to cases on collateral review. The Court concluded: "Booker’s constitutional rule falls squarely under the category of new rules of criminal procedure that do not apply retroactively to § 2255 cases on collateral review."
Query: Is it still possible to argue, in light of Varela, in a § 2255, that Blakely and Booker do not announce a "new" rule. Note that Ring announced a new rule because it overruled Walton v. Arizona. But Blakely and Booker, arguably, merely applied the old Apprendi rule.
Also, Varela’s conviction became final pre-Apprendi. But what about defendants whose convictions became final after Apprendi (of after Blakely): for post-Apprendi defendants, is there any "new" rule in Blakely or Booker? And what about the distinction that in Ring, the defendant still had the benefit of a beyond-a-reasonable-doubt standard, unlike the defendant in Varela? And what of the substantive law change wrought by Booker, not addressed in Varela?
Wednesday, February 16, 2005
922(g) not a crime of violence
In U.S. v. Johnson, No. 04-16502 (Feb. 14, 2005), the Court (Tjoflat, Dubina, Cox) granted the defendant’s interlocutory appeal, holding that a conviction for being a felon-in-possession in violation of 18 U.S.C. § 922(g) does not qualify as a "crime of violence" within the meaning of 18 U.S.C. § 3156(a)(4), and therefore was not a basis (as the district court ruled) for denying release after a guilty plea and pending sentencing.
The Court rejected the argument that a § 922(g) charge involves a substantial risk of physical force and therefore qualifies as a "crime of violence." The Court recognized a circuit conflict on this issue, and sided with the courts which focused on the nature of the § 922(g) offense. The Court reasoned that illegal possession of a firearm by a felon did not inherently involve a risk of physical force. The Court noted that a felon’s possession of a firearm did not necessarily pose a greater risk of physical force than a non-felon’s possession, pointing out that some felons are convicted of non-violent felonies. The Court noted that in Leocal v. Ashcroft, 125 S.Ct. 377 (2004) the Supreme Court reasoned that a DUI conviction could not count as an offense involving a risk of harm because the harm was not a "natural outcome of an illegal use of force." The Court contrasted § 922(g) with a burglary, an offense which "necessarily creates a substantial risk of violence."
The Court therefore remanded the case to the district court, for reconsideration of whether the defendant should be released pending sentencing.
The Court rejected the argument that a § 922(g) charge involves a substantial risk of physical force and therefore qualifies as a "crime of violence." The Court recognized a circuit conflict on this issue, and sided with the courts which focused on the nature of the § 922(g) offense. The Court reasoned that illegal possession of a firearm by a felon did not inherently involve a risk of physical force. The Court noted that a felon’s possession of a firearm did not necessarily pose a greater risk of physical force than a non-felon’s possession, pointing out that some felons are convicted of non-violent felonies. The Court noted that in Leocal v. Ashcroft, 125 S.Ct. 377 (2004) the Supreme Court reasoned that a DUI conviction could not count as an offense involving a risk of harm because the harm was not a "natural outcome of an illegal use of force." The Court contrasted § 922(g) with a burglary, an offense which "necessarily creates a substantial risk of violence."
The Court therefore remanded the case to the district court, for reconsideration of whether the defendant should be released pending sentencing.
Monday, February 14, 2005
No Booker error when defendant waives appeal
In U.S. v. Grinard-Henry, No. 04-12677 (Feb. 11, 2005), the Court denied a defendant’s Booker-based motion for reconsideration of the Court’s order dismissing his appeal, finding that the defendant had waived his right of appeal as part of his plea agreement.
The Court noted that the appeal waiver preserved the defendant’s right to appeal a sentence "above the statutory maximum." Reaffirming its recent holding in U.S. v. Rubbo, 2005 WL 120507 (11th Cir. Jan. 21, 2005), the Court held that this language referred only to the relevant statutory maximum, not to the Guideline maximum as construed in Blakely/Booker. The Court further noted that the appeal waiver preserved the defendant’s right to appeal "a sentence in violation of law apart from the sentencing guidelines." The Court found that this language did not permit the defendant to raise a Booker challenge to the application of the sentencing guidelines. The Court pointed out that at his plea colloquy the defendant acknowledged the district court’s power to impany any sentence "pursuant to the sentencing guidelines."
The Court noted that the appeal waiver preserved the defendant’s right to appeal a sentence "above the statutory maximum." Reaffirming its recent holding in U.S. v. Rubbo, 2005 WL 120507 (11th Cir. Jan. 21, 2005), the Court held that this language referred only to the relevant statutory maximum, not to the Guideline maximum as construed in Blakely/Booker. The Court further noted that the appeal waiver preserved the defendant’s right to appeal "a sentence in violation of law apart from the sentencing guidelines." The Court found that this language did not permit the defendant to raise a Booker challenge to the application of the sentencing guidelines. The Court pointed out that at his plea colloquy the defendant acknowledged the district court’s power to impany any sentence "pursuant to the sentencing guidelines."
No Booker error when defendant admits facts
In U.S. v. Frye, No. 03-16377 (11th Cir. 2005), the Court found affirmed the conviction and sentence of a defendant who pled guilty to using a firearm in connection with a drug felon offense in violation of 18 U.S.C. § 924(c), attempt to manufacture more than 50 grams of methamphetamine, and manufacture of more than 500 grams of methamphetamine.
The Court rejected the argument that the plea was involuntary because of irreconciliable differences between the defendant and his lawyer, noting that the record of the plea colloquy showed that Frye was not pleading guilty involuntarily.
The Court also rejected the argument that the defendant could not be convicted of violating § 924(c) because he was not convicted of an underlying drug felony offense. The Court joined other circuits which have held that an actual violation of a drug felony statute is not necessary to establish a § 924(c) violation. § 924(c) does not require that a defendant be convicted of, or even charged with, a predicate offense.
Reviewing the factual resume at the plea colloquy, the Court further rejected the argument that the § 924(c) guilty plea was supported by insufficient facts.
Finally, the Court found no Booker violation in the imposition of sentencing enhancements for being an organizer in the conspiracy, or for risk of harm to human life or the environment, based on factors that were neither admitted by him nor proved beyond a reasonable doubt. The Court found that the factual resume submitted to the district court as part of the plea colloquy supported the two enhancements. Frye admitted to the conduct underlying the sentence enhancements. The sentence therefore did not violate Booker.
The Court rejected the argument that the plea was involuntary because of irreconciliable differences between the defendant and his lawyer, noting that the record of the plea colloquy showed that Frye was not pleading guilty involuntarily.
The Court also rejected the argument that the defendant could not be convicted of violating § 924(c) because he was not convicted of an underlying drug felony offense. The Court joined other circuits which have held that an actual violation of a drug felony statute is not necessary to establish a § 924(c) violation. § 924(c) does not require that a defendant be convicted of, or even charged with, a predicate offense.
Reviewing the factual resume at the plea colloquy, the Court further rejected the argument that the § 924(c) guilty plea was supported by insufficient facts.
Finally, the Court found no Booker violation in the imposition of sentencing enhancements for being an organizer in the conspiracy, or for risk of harm to human life or the environment, based on factors that were neither admitted by him nor proved beyond a reasonable doubt. The Court found that the factual resume submitted to the district court as part of the plea colloquy supported the two enhancements. Frye admitted to the conduct underlying the sentence enhancements. The sentence therefore did not violate Booker.
Tuesday, February 08, 2005
Bartering drugs for gun is not "use" of gun
In U.S. v. Montano, No. 03-11950 (Feb. 4, 2005), the Court (Barkett, Hill & Forrester, b.d.) held that bartering drugs to obtain a firearm cannot constitute "use" of a firearm within the meaning of 18 U.S.C. § 924(c). The Court recognized the circuit conflict on this issue. However, the Court found no "active employment" of a firearm when drugs are being used to obtain it, and the firearm is never actually obtained (the defendant bartered with an undercover law enforcement official). The defendant merely passively viewed the firearms, and then never again came into view of them, and never possessed them, either actually or constructively. Moreover, Montano could not, as a matter of law, conspire with government officials in the commission of an unlawful act.
The Court noted, however, that Montano was pressing this issue for the first time in a § 2255 motion and,had pled guilty to the § 924(c) offense and not challenged this on appeal. Therefore, to overcome his procedural default, had to show not just factual innocence of the § 924(c) but "actual innocence," i.e., that he was actually innocent of the other charges which the government dismissed in exchange for his guilty plea to the § 924(c) offense. The Court remanded the case for this determination.
The Court noted, however, that Montano was pressing this issue for the first time in a § 2255 motion and,had pled guilty to the § 924(c) offense and not challenged this on appeal. Therefore, to overcome his procedural default, had to show not just factual innocence of the § 924(c) but "actual innocence," i.e., that he was actually innocent of the other charges which the government dismissed in exchange for his guilty plea to the § 924(c) offense. The Court remanded the case for this determination.
11th Circuit Booker Plain Error
In U.S. v. Rodriguez, No. 04-12676 (Feb. 4, 2005), the Court (Carnes, Marcus, Fay) upheld a sentence against a Booker challenge on "plain error" review.
First addressing Rodriguez’ preserved error, the Court rejected the argument that the sentencing court erred in its calculation of drug quantity, finding that the court’s estimate was "anything but erroneous."
Turning to the Booker issue, the Court noted that to establish "plain error" a defendant had to show not only that there was "error," and that the error was "plain," but also that the error affected "substantial rights." The Court recognized that there was "error" and that the error was "plain" but noted that a substantial rights violation required showing that the error undermined confidence in the outcome. The Court noted that in Jones v. U.S., 527 U.S. 373 (1999), the Supreme Court had stated that where the effect of an alleged error in a faulty jury instruction’s effect on the jury is "uncertain," and one cannot say whether the error worked to the defendant’s detriment, the error does not affect a defendant’s substantial rights.
The Court further noted that since, post-Booker, the sentencing court could have imposed the now-invalid guideline drug enhancements based on its discretion to impose a sentence within the statutory range, it was uncertain whether the defendant was worse off as a result of the Sixth Amendment violation. The Guidelines remained an "important factor" for the Court’s decision.
The Court found that it did not know whether, in imposing sentencing under advisory Guidelines, a sentencing court would have imposed a lesser sentence on Rodriguez than the mid-guideline range of 109 months that it imposed. [Query: Is there a meaningful difference between uncertainty, as in Jones, over an event in the past, e.g. how a jury instruction affected a jury’s verdict, and an event in the future, as in Rodriguez, over how a changed sentencing regime might affect a resentencing? Is this the key difference between the past and the future: for the past, the doors have closed, but for the future, even when the situation objectively is hopeless, isn’t there always still room for hope?]. The Court found that it was not necessarily prejudicial error for a court to have believed that a sentence was mandatory, if the court could have imposed the same sentence under a discretionary regime. The Court recognized the conflict of its reasoning with decisions of the Second, Fourth and Sixth Circuit, but found these decisions unpersuasive.
First addressing Rodriguez’ preserved error, the Court rejected the argument that the sentencing court erred in its calculation of drug quantity, finding that the court’s estimate was "anything but erroneous."
Turning to the Booker issue, the Court noted that to establish "plain error" a defendant had to show not only that there was "error," and that the error was "plain," but also that the error affected "substantial rights." The Court recognized that there was "error" and that the error was "plain" but noted that a substantial rights violation required showing that the error undermined confidence in the outcome. The Court noted that in Jones v. U.S., 527 U.S. 373 (1999), the Supreme Court had stated that where the effect of an alleged error in a faulty jury instruction’s effect on the jury is "uncertain," and one cannot say whether the error worked to the defendant’s detriment, the error does not affect a defendant’s substantial rights.
The Court further noted that since, post-Booker, the sentencing court could have imposed the now-invalid guideline drug enhancements based on its discretion to impose a sentence within the statutory range, it was uncertain whether the defendant was worse off as a result of the Sixth Amendment violation. The Guidelines remained an "important factor" for the Court’s decision.
The Court found that it did not know whether, in imposing sentencing under advisory Guidelines, a sentencing court would have imposed a lesser sentence on Rodriguez than the mid-guideline range of 109 months that it imposed. [Query: Is there a meaningful difference between uncertainty, as in Jones, over an event in the past, e.g. how a jury instruction affected a jury’s verdict, and an event in the future, as in Rodriguez, over how a changed sentencing regime might affect a resentencing? Is this the key difference between the past and the future: for the past, the doors have closed, but for the future, even when the situation objectively is hopeless, isn’t there always still room for hope?]. The Court found that it was not necessarily prejudicial error for a court to have believed that a sentence was mandatory, if the court could have imposed the same sentence under a discretionary regime. The Court recognized the conflict of its reasoning with decisions of the Second, Fourth and Sixth Circuit, but found these decisions unpersuasive.
Monday, January 31, 2005
2526 LSD hits; 54 months' imprisonment
In U.S. v. Grant, No. 03-13406 (Jan. 27, 2005), the Court (Carnes, Hull, Hill) held that the weight of LSD, for which the pure LSD weight was 0.1263 grams, and the weight with the water in which it was contained was 103.7 grams (or the equivalent of 2526 dosage units or "hits"), must, for sentencing computation purposes, include the water within which it is contained. The Court rejected the argument that the defendant should have been sentenced on the basis of the pure weight of the LSD.
Citing Chapman v. U.S., 111 S.Ct. 1919 (1991), the Court held that the weight of the mixture is the applicable weight for calcuting LSD quantities under the drug statutes. Accordingly, Grant, who admitted at his plea colloquy to possessing 10 grams of LSD, was subject to the mandatory minimum penalty of 120 months for LSD possession. The Court found no meaningful difference between the blotter paper carrier at issue in Chapman and the water used by Grant.
The Court rejected Grant’s argument that, at a resentencing after a successful appeal of a sentence in which he received a downward departure below the otherwise applicable mandatory minimum, the mandatory minimum could no longer be a relevant consideration for his sentence. The Court held that the resentencing "wiped the slate clean." The Court noted that Grant’s new sentence was half the mandatory minimum, and that the district court was free to reconstruct the sentence as it did, based on the mandatory minimum and a new downward departure.
Citing Chapman v. U.S., 111 S.Ct. 1919 (1991), the Court held that the weight of the mixture is the applicable weight for calcuting LSD quantities under the drug statutes. Accordingly, Grant, who admitted at his plea colloquy to possessing 10 grams of LSD, was subject to the mandatory minimum penalty of 120 months for LSD possession. The Court found no meaningful difference between the blotter paper carrier at issue in Chapman and the water used by Grant.
The Court rejected Grant’s argument that, at a resentencing after a successful appeal of a sentence in which he received a downward departure below the otherwise applicable mandatory minimum, the mandatory minimum could no longer be a relevant consideration for his sentence. The Court held that the resentencing "wiped the slate clean." The Court noted that Grant’s new sentence was half the mandatory minimum, and that the district court was free to reconstruct the sentence as it did, based on the mandatory minimum and a new downward departure.
Wednesday, January 26, 2005
2255 claim can be waived in plea colloquy
In Williams v. U.S., No. 04-11704 (Jan. 24, 2005), the Court held that a defendant whose plea agremeent provided for a waiver of his right to challenge his sentence "directly or collaterally" had waived his right to seek § 2255 relief by alleging ineffective assistance of counsel at sentencing. The Court pointed out that the district court specifically questioned Williams during the plea colloquy about the appeal waiver. In these circumstances, Williams knowingly waived his right to challenge his sentence under § 2255, and accordingly § 2255 relief was properly denied by the district court.
Booker appeal rights are waivable
In U.S. v. Rubbo, No. 04-10874 (Jan. 21, 2005), the Court (Carnes, Cox & Mills b.d.) held that an exception to a defendant’s appeal waiver which permitted an appeal if the sentence exceeded the "maximum permitted by statute" did not allow a challenge to a sentence on the basis that it exceeded the "statutory maximum" contemplated by the Supreme Court’s Apprendi/Blakely/Booker decisions.
The Court found that the term "maximum permitted by statute" as used in the plea agreement had a different meaning than the term "statutory maximum" used in the Supreme Court’s recent Sixth Amendment jurisprudence. The plea agreement term referred simply to the "upper limit of punishment that Congress has legislatively specified for violation of a statute," whereas the term "statutory maximum," while seemingly similar, refers to the meaning referenced in the Supreme Court cases. The Court noted that similar words can take on different meanings in different contexts. The Court further noted that the right to appeal a sentence based on Apprendi/Booker can be waived, and held that the defendant did so in her plea agreement.
The Court found that the term "maximum permitted by statute" as used in the plea agreement had a different meaning than the term "statutory maximum" used in the Supreme Court’s recent Sixth Amendment jurisprudence. The plea agreement term referred simply to the "upper limit of punishment that Congress has legislatively specified for violation of a statute," whereas the term "statutory maximum," while seemingly similar, refers to the meaning referenced in the Supreme Court cases. The Court noted that similar words can take on different meanings in different contexts. The Court further noted that the right to appeal a sentence based on Apprendi/Booker can be waived, and held that the defendant did so in her plea agreement.
Cell phone call can be interstate nexus
In U.S. v. Drury, No. 02-12924 (Jan. 18, 2005), the Court (Barkett, Marcus, Alarcon b.d.), considering the case for second time after the grant of en banc rehearing was vacated, affirmed a conviction for violating the federal murder-for-hire statute, and for possessing a firearm in connection with a crime of violence, in violation of 18 U.S.C. §§ 1958(a), 924(c).
Drury’s conviction arose out of four cell phone calls he placed in which he planned the killing of his wife. The recipient of the phone calls was located, like Drury, in Georgia, but the cell phone switching system caused the call to go through Jacksonville, Florida, i.e. interstate. The Court found that this interstae nexus sufficed to establish the murder for hire statute’s interstate nexus. The Court rejected the argument that no interstate nexus could exist since Drury had no idea his cell phone would be routed out of state, pointing out that intent to place an interstate call in not a requirement of the statute and for all Drury knew the recipient of his cell phone call could have been out of state at the time of the call.
The Court also rejected Drury’s challenge to the jury instruction which withdrew from the jury the element of the interstate nexus. The Court noted the uncontroverted evidence that the phone calls went out of state, and, citing Neder v. U.S., 527 U.S. 1 (1999), held that the failure to instruct the jury on an essential element of the statute was harmless error.
The Court found no abuse of discretion in the district court’s preclusion of evidence of the truthful character of the defendant, finding that the prosecutor’s comments about the defendant’s credibility did not rise to the level of an “attack” under Fed. R. Evid. 608(a)(2).
The Court also found no abuse of discretion in the trial court’s exclusion of a prior consistent statement Drury allegedly made to his son regarding the “role-playing exercise” that was going on when Drury was arranging for his wife’s murder. The Court again found that Drury’s credibility had no been attacked to the point where a prior consistent statement was admissible, and further noted that the statement was not offered, as the rule requires, to rebut a claim of recent fabrication. The Court also noted that the statement was made at a time when the defendant already had a motive to fabricate a story for his son.
Finally, the Court found no error in the trial court’s refusal to give requested jury instructions regarding credibility, finding one “superfluous” and the other unnecessary to Drury’s presentation of an effective defense.
Drury’s conviction arose out of four cell phone calls he placed in which he planned the killing of his wife. The recipient of the phone calls was located, like Drury, in Georgia, but the cell phone switching system caused the call to go through Jacksonville, Florida, i.e. interstate. The Court found that this interstae nexus sufficed to establish the murder for hire statute’s interstate nexus. The Court rejected the argument that no interstate nexus could exist since Drury had no idea his cell phone would be routed out of state, pointing out that intent to place an interstate call in not a requirement of the statute and for all Drury knew the recipient of his cell phone call could have been out of state at the time of the call.
The Court also rejected Drury’s challenge to the jury instruction which withdrew from the jury the element of the interstate nexus. The Court noted the uncontroverted evidence that the phone calls went out of state, and, citing Neder v. U.S., 527 U.S. 1 (1999), held that the failure to instruct the jury on an essential element of the statute was harmless error.
The Court found no abuse of discretion in the district court’s preclusion of evidence of the truthful character of the defendant, finding that the prosecutor’s comments about the defendant’s credibility did not rise to the level of an “attack” under Fed. R. Evid. 608(a)(2).
The Court also found no abuse of discretion in the trial court’s exclusion of a prior consistent statement Drury allegedly made to his son regarding the “role-playing exercise” that was going on when Drury was arranging for his wife’s murder. The Court again found that Drury’s credibility had no been attacked to the point where a prior consistent statement was admissible, and further noted that the statement was not offered, as the rule requires, to rebut a claim of recent fabrication. The Court also noted that the statement was made at a time when the defendant already had a motive to fabricate a story for his son.
Finally, the Court found no error in the trial court’s refusal to give requested jury instructions regarding credibility, finding one “superfluous” and the other unnecessary to Drury’s presentation of an effective defense.
Tuesday, January 11, 2005
Conspiring to launder money requires no overt act
In Whitfield v. U.S., No. 03-1293 (Jan. 11, 2005), the Supreme Court held that proof of a conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(h) does not require proof of an overt act in furtherance of the conspiracy.
The Court noted its rule of statutory construction for conspiracy statutes, which provides that a conspiracy statute will not be interpreted to make an overt act an element of the offense unless the statute expressly provides such a requirement. The money laundering statute at issue, like the drug conspiracy statute in U.S. v. Shabani, 513 U.S. 10 (1994), did not contain an express overt act element. Hence, no overt act element would be required to prove the offense.
The Court rejected the argument that § 1956(h) did not create a separate offense, but merely increased the penalties for a traditional 18 U.S.C. § 371 conspiracy to money launder – an offense which did contain an overt act element. The Court found that the plain language of § 1956(h) showed that it established an offense. Moreover, the legislative history was consistent with this interpretation.
Finally, the Court rejected an argument based on the venue provision of the law, finding that by allowing venue to lie in any district in which an overt act was committed in furtherance of the conspiracy Congress did not make an overt act an element of the offense.
The Court noted its rule of statutory construction for conspiracy statutes, which provides that a conspiracy statute will not be interpreted to make an overt act an element of the offense unless the statute expressly provides such a requirement. The money laundering statute at issue, like the drug conspiracy statute in U.S. v. Shabani, 513 U.S. 10 (1994), did not contain an express overt act element. Hence, no overt act element would be required to prove the offense.
The Court rejected the argument that § 1956(h) did not create a separate offense, but merely increased the penalties for a traditional 18 U.S.C. § 371 conspiracy to money launder – an offense which did contain an overt act element. The Court found that the plain language of § 1956(h) showed that it established an offense. Moreover, the legislative history was consistent with this interpretation.
Finally, the Court rejected an argument based on the venue provision of the law, finding that by allowing venue to lie in any district in which an overt act was committed in furtherance of the conspiracy Congress did not make an overt act an element of the offense.
Highway travel is Interstate Commerce
In U.S. v. Ballinger, No. 01-14872 (Jan. 10, 2005), the Court (en banc) held that 18 U.S.C. § 247, which criminalizes destruction of religious property on account of its religious character, is not an invalid exercise of Congress’ power under the Commerce Clause of the Constitution.
Ballinger was an arsonist who travelled on the interstate highways through 4 States for no other purpose than to burn churches to the ground. Eleven churches in 4 States were destroyed during the arson spree.
The Court found that it need not reach the issue whether the conviction was valid under Congress' Commerce Clause power to regulate intrastate activities which substantially affect interstate commerce, because the statute fell squarely within the other aspects of the Commerce Clause power, namely the power to regulate channels or instrumentalities of interstate commerce. The Court rejected the argument that arson is purely local activity, pointing out that Ballinger used the interstate highways, and that Congress can prohibit the use of interstate channels or instrumentalities to promote the "spread of any evil" from State to State. The Court pointed out that travel from State to State was essential to Ballinger’s crime. The Court pointed out that the statute contained a jurisdictional requirement that an arson affect interstate commerce, and that the statute therefore did not merely bar local intrastate arson.
The Court rejected the argument that interstate travel before the arson was irrelevant to the question of whether the arson was connected to interstate commerce. The Court construed the "in commerce" language of the statute’s jurisdictional requirement to refer to the use of the channels or instrumentalities of interstate commerce. The Court stated that the "in commerce" language reaches less commerce than "affecting commerce" language. But the Court found that the "in commerce" language covered the act of traveling interstate to commit arson. The Court pointed out that similarly-worded statutes prohibiting firearm possession had been upheld even though the only jurisdictional nexus was that the gun had at some point in time travelled interstate.
Ballinger was an arsonist who travelled on the interstate highways through 4 States for no other purpose than to burn churches to the ground. Eleven churches in 4 States were destroyed during the arson spree.
The Court found that it need not reach the issue whether the conviction was valid under Congress' Commerce Clause power to regulate intrastate activities which substantially affect interstate commerce, because the statute fell squarely within the other aspects of the Commerce Clause power, namely the power to regulate channels or instrumentalities of interstate commerce. The Court rejected the argument that arson is purely local activity, pointing out that Ballinger used the interstate highways, and that Congress can prohibit the use of interstate channels or instrumentalities to promote the "spread of any evil" from State to State. The Court pointed out that travel from State to State was essential to Ballinger’s crime. The Court pointed out that the statute contained a jurisdictional requirement that an arson affect interstate commerce, and that the statute therefore did not merely bar local intrastate arson.
The Court rejected the argument that interstate travel before the arson was irrelevant to the question of whether the arson was connected to interstate commerce. The Court construed the "in commerce" language of the statute’s jurisdictional requirement to refer to the use of the channels or instrumentalities of interstate commerce. The Court stated that the "in commerce" language reaches less commerce than "affecting commerce" language. But the Court found that the "in commerce" language covered the act of traveling interstate to commit arson. The Court pointed out that similarly-worded statutes prohibiting firearm possession had been upheld even though the only jurisdictional nexus was that the gun had at some point in time travelled interstate.
Thursday, January 06, 2005
Non-adverse conflict of interest
In Hunter v. Dep’t of Corrections, No. 04-13574 (Jan. 5, 2005), the Court (Carnes, Barkett, Hull) affirmed the denial of habeas relief to a Florida inmate sentenced to death for a 1992 murder.
The Court rejected the argument that Hunter’s trial counsel labored under a conflict of interest because members of his office, the Public Defender’s Office for Volusia County, had represented the prosecution’s lead witness in unrelated earlier criminal proceedings, and had failed to cross-examine this witness about is prior criminal record. The Court found no basis for overturning the state court determinations that trial counsel was unaware of the witness’ criminal history. The Court also found that Hunter failed to show that his counsel’s representation was adversely affected by the conflict of interest. The Court noted no evidence of an "actual" conflict of interest. The Court also found no evidence of an adverse effect on counsel’s performance. The Court further noted that even if its own precedents supported Hunter’s claim, under habeas law a state determination is deficient only when it is at odds with Supreme Court precedent, which was not the case here.
The Court also rejected the argument that counsel was deficient for failing to introduce photographs of the defendants after the murder, wearing a different shirt than the one witnesses ascribed to the shooter. The Court noted that all the photographs, taken together, could have hurt the defense because they showed that the defendant might have changed shirts after the murder.
The Court rejected the argument that Hunter’s trial counsel labored under a conflict of interest because members of his office, the Public Defender’s Office for Volusia County, had represented the prosecution’s lead witness in unrelated earlier criminal proceedings, and had failed to cross-examine this witness about is prior criminal record. The Court found no basis for overturning the state court determinations that trial counsel was unaware of the witness’ criminal history. The Court also found that Hunter failed to show that his counsel’s representation was adversely affected by the conflict of interest. The Court noted no evidence of an "actual" conflict of interest. The Court also found no evidence of an adverse effect on counsel’s performance. The Court further noted that even if its own precedents supported Hunter’s claim, under habeas law a state determination is deficient only when it is at odds with Supreme Court precedent, which was not the case here.
The Court also rejected the argument that counsel was deficient for failing to introduce photographs of the defendants after the murder, wearing a different shirt than the one witnesses ascribed to the shooter. The Court noted that all the photographs, taken together, could have hurt the defense because they showed that the defendant might have changed shirts after the murder.
Tuesday, December 21, 2004
2241 Time Bar Same as 2254's
In Peoples v.Chatman, No. 03-12384 (Dec. 20, 2004), the Court (Anderson, Wilson, Owens b.d.) reaffirmed the holdings of Medberry v. Crosby, 351 F.3d 1049 (11th Cir. 2003) and Thomas v. Crosby, 371 F.3d 782 (11th Cir. 2004), and held that the one-year time bar of 28 U.S.C. § 2244(d) applies not just to habeas petitions brought pursuant to 28 U.S.C. § 2254, but also to those brought pursuant to § 2241. Accordingly, Peoples’ § 2241 habeas petition, which was filed after the statute of limitations expired, was time-barred.
Free to revisit
In U.S. v. Eldick, No. 03-16158 (Dec. 20, 2004), the Court (Birch, Kravitch, Cudahy b.d.) vacated a sentence and remanded for resentencing, because sentence was imposed under the wrong statutory maximum. The Court noted that at resentencing the district court was free to revisit any rulings it had made at the initial sentencing.
Wednesday, December 15, 2004
Probable Cause to Arrest Even if Cop Cites Wrong Crime
In Devenpeck v. Alford, No. 03-710 (Dec. 13, 2004), the Supreme Court held that a warrantless arrest by a police officer is reasonable even if the offense establishing probable cause is not "closely related" to the conduct the arresting officer gives the defendant as the reason for the arrest at the time of arrest. The Court noted that under Whren v. United States, 517 U.S. 806 (1996), an arresting officer’s subjective reason for making an arrest is irrelevant to probable cause. What matters is whether, given the facts known to the officer, there is probable cause to believe that a crime has been or is being committed. The Court noted that a "closely related offense" test for probable cause would have the perverse effect of causing officers to cease giving reasons for arrest, or to cite every conceivable reason for the arrest.
Lawyers' Standing to Sue for Non-Clients
In Kowalski v. Tesmer, No. 03-407, the Supreme Court held that attorneys lack third-party standing to assert the rights of criminal defendants who have been denied appellate rights after pleading guilty. [Note: it is thought that the Court will address the substantive issue – whether defendants who plead guilty can be denied appellate counsel, and can be denied the right to appeal unless a court specifically grants leave to appeal – in a pending case, Halbert v. Michigan, No. 03-10198].
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