Glover: Guideline mid-range sentence not harmless error under Booker

In U.S. v. Glover, No. 04-16745 (Nov. 29, 2005), the Court upheld the defendant’s conviction for being a felon in possession of a firearm, but vacated his sentence for Booker error.
The Court rejected the argument that his statement was obtained in violation of Miranda because he lacked sufficient I.Q. to understand the warnings. The Court noted the police testimony that Glover interacted normally and intelligently with the arresting officers.
The Court also rejected Glover’s challenge to the sufficiency of the evidence, noting that two witnesses testified that the gun was his.
The Court found that there was Booker error in the sentencing court’s reliance on mandatory Guidelines, and that this error was not harmless. The Court rejected the government’s argument that the error was harmless because the judge imposed sentence in the middle of the Guidelines range. Though recognizing cases in other circuits which took the government’s position, the Court found that the fact of a mid-range sentence did not suffice to meet the government’s heavy burden of showing that a sentence imposed under a then-mandatory system represented harmless error.

Williams: Does relevant conduct for possession encompass assault?

In U.S. v. Williams, No. 05-11318 (Nov. 30, 2005), the Court (Anderson, Carnes, Black) approved an enhancement for use of a firearm which caused was discharged and caused serious bodily injury, even though the defendant, though charged with being a felon in possession of a fiream was not charged or convicted of possessing a firearm used in a separate assault, but another firearm. The Court concluded that the Guideline encompassed "any" fireram, which "covers any fireram that is used in connection with the commission of another offense which is within the relevant conduct of the charged offense."
The Court noted a circuit split on the meaning of the Guideline cross-reference, but concluded that the term "any firearm" as used in the Guideline can apply to firearms not named in the indictment.
The Court also noted a circuit split on whether the other offenses which can be encompassed with a Guideline cross-reference must also be part of "relevant conduct." The Court concluded that conduct must be part of "relevant conduct" in order to be a basis for enhancement under the USSG § 2K2.1(c)(1) cross-reference.
The Court noted that the Government had argued that the assault in which another firearm was used should be considered part of "relevant conduct" because it was conduct that should be "grouped" under § 3D1.2(d). However, the government’s argument was misplaced, because the Guidelines specifically exclude "assault" from grouping analysis. Because this was the only rationale for the enhancement, the Court vacated the sentence and remanded for resentencing, at which the district court could examine whether other Guideline provisions allow assault to be considered "relevant conduct" for a firearm possession offense.

Michael: No ineffective assistance on PTSD defense

In Michael v. Crosby, No. 04-10137 (Nov. 21, 2005), the Court affirmed the district court's denial of a habeas petition by a state inmate convicted of killing her ex-husband by shooting and stabbing him several times in the presence of their two sons. Specifically, the Court held that the state court's decision, following a full evidentiary hearing, that Michael's counsel was not ineffective under Strickland was not contrary to, or an unreasonable application of, clearly established federal law. Michael argued that her trial attorney had rendered ineffective assistance by failing to properly investigate or present a PTSD defense. Her trial attorney had testified at the state habeas hearing that, at the time of the trial, PTSD evidence was not admissible under Florida law to establish a complete defense. He thus elected to pursue a defense based on Battered Spouse Syndrome. When his experts opined that Michael did not suffer from BSS, counsel pursued a defense of learned helplessness which was included in the diagnosis of one expert. All the experts agreed that Michael exhibited symptoms of PTSD. The trial court excluded the evidence of learned helplessness. Michael was acquitted of first-degree murder and convicted of the lesser-included offense of second-degree murder with a firearm. The trial court sentenced her to life imprisonment based largely on the brutal nature of the offense and the fact that her children were present at the scene of the crime. The state court, on habeas review, found that the decision of trial counsel was a reasonable trial strategy in light of the law on PTSD evidence at the time. It thus held that counsel was not ineffective under Strickland. The Court agreed with the district court that the state court decision was not contrary to, or an unreasonable application of, Strickland and affirmed the denial of habeas relief.

Wood: Obstruction enhancement ok for 1st trial

In U.S. v. Wood, No. 04-11849 (Nov. 21, 2005), the Court affirmed a 97-month sentence for importation of 500 grams or more of cocaine. First, the Court rejected Mr. Wood's claim that the district court improperly included an obstruction of justice enhancement in its guidelines calculation where the enhancement was based on his testimony at his initial trial and where he did not testify at the re-trial following a reversal by the court of appeals on grounds unrelated to the obstruction. The Court then found that there was Booker error where the district court imposed a sentence under a mandatory guidelines scheme. However, reviewing for plain error, the Court held that Wood failed to demonstrate that the district court would have imposed a lower sentence even though it imposed a sentence at the low-end of the sentencing range.

Munoz: Sufficient telemarking fraud evidence

In U.S. v. Munoz, No. 03-16216 (Nov. 23, 2005), the Court let stand the convictions and sentences of the appellants, Munoz and Llona, who had been tried and convicted for their part of a scheme to illegally sell, through telemarketing and without the requisite prescriptions, two treatments for erectile dysfunction. Briefly, Munoz and Llona concocted a scheme involving a urologist and a pharmacist in which the urologist would write phony prescriptions, in the names of his real patients, for three prescription drugs used to treat erectile dysfunction. The pharmacist would then combine the three drugs into an urethral suppository and ship that back to the urologist. Munoz and Llona would pay for the drugs, including a nice profit for the doctor and pharmacist, and would then sell the suppository without a prescription through telemarketing, mostly over Spanish airwaves, under the name "Power-Gel." An oral form, "Vigor," was later added. The telemarketing touted "Power-Gel" and "Vigor" as all-natural, non-prescription drugs that were safe to use even by those suffering from diabetes, high blood pressure, heart problems, kidney problems, etc. The drugs were also touted as being 100% effective. Following a trial, the appellants were convicted of conspiracy, mail fraud and introducing into interstate commerce a misbranded prescription drug. They were acquitted on charges of money-laundering conspiracy, wire fraud, and misbranding drugs after shipment in interstate commerce. The district court sentenced each of them to a 51-month term of imprisonment.
The Court rejected indictment and sufficiency challenges to the charge that the appellants conspired to sell prescription drugs without a prescription. The challenges rested largely on the fact that the urologist had in fact written prescriptions for the drugs. The Court pointed out that despite the fraudulent prescriptions, Munoz and Llona knowingly sold the drugs to the eventual users without a prescription. Affirming the mail fraud convictions against a sufficiency claim, the Court held that it was "irrelevant whether or not appellants personally knew of, communicated with, or directed activities toward the six named victims."
The Court also rejected a challenge to the district court's loss calculation of $1.5M to $2.5M. The Court noted that a sentencing court may calculate loss from either the perspective of the actual loss to the victims or the actual gain by the defendants. Here, the district court used a hybrid system in which it calculated the gain by the defendants ($2.21M) and reduced it by 30% based in large part from the trial testimony that the placebo effect alone would have helped 30% of users. The Court noted that both figures were within the calculated range. Finally, reviewing for plain error, the Court held that, despite the presence of a Booker error, the appellants failed to demonstrate that the district court would have imposed a lower sentence under an advisory sentencing scheme.

James: Possession of 200 grams of cocaine is "serious drug offense"

In U.S. v. James, No. 04-12915 (Nov. 17, 2005), the Court, on appeal by the government, vacated a 71-month sentence for a felon-in-possession conviction and remanded with instructions to resentence Mr. James as an armed career criminal with a fifteen-year minimum mandatory sentence. At the core of the appeal was the question of whether a Florida conviction for trafficking in cocaine by possession of between 200 and 400 grams of cocaine constituted a "serious drug offense" under the ACCA. The district court noted that under Florida law such a conviction did not have as an element the intent to distribute, and it thus reasoned that it did not qualify as a predicate offense under the ACCA which defines a serious drug offense as a offense "involving" the intent to distribute. Reversing, the Court held that Florida law "infers an intent to distribute once a defendant possesses a certain amount of drugs," and that the conviction qualified as a predicate offense. On cross-appeal, the Court affirmed the district court's holding that attempted burglary of a dwelling is a "violent felony" under the ACCA.

Ibarra-Castellano: Crawford does not bar warrant of deportation document

In U.S. v. Ibarra-Cantellano, No. 05-11143 (Nov. 15, 2005), the Court affirmed the defendant’s conviction and 100-month sentence for illegal reentry after deportation following a conviction of an aggravated felony.
The Court rejected the argument, based on Crawford v. Washington, 541 U.S. 36 (2004), that it violated the Confrontation Clause for the government to rely on a warrant of deportation document to establish that Cantellano had previously been deported, and that Cantellano had the right to confront the government agent who actually witnessed him leave the country. The Court ntoed that Crawford merely reached the Confrontation Clause requirements for "testimonial" evidence. The Court found that a warrant of deportation was non-testimonial evidence, because it "is recorded routinely and not in preparation for a criminal trial." The Court noted that its holding was consistent with the two other Circuits to have reached the issue.
The Court also rejected the argument that Crawford applied at the sentencing hearing, and should have precluded the admission of hearsay evidence. The Court noted that other circuits had also concluded that Crawford’s Confrontation Clause holding does not apply at sentencing.
The Court also rejected the argument that Shepherd v. U.S., 125 S.Ct. 1254 (2005), which held that a sentencing court cannot consider police reports and complaint applications to determine the nature of a prior conviction, did not preclude a court, at sentencing, from relying on presentence reports and fingerprint records to determine the fact – as opposed to the nature – of the defendant’s having been previously convicted of a felony.
Finally, the Court rejected the argument that the Sixth Amendment precluded the judge from relying on the fact of a prior conviction to enhance the sentence, citing Almendarez-Torres v. United States, 523 U.S. 224 (1998).

Rojas: Criminal case does not include obligor/indemnitor contract dispute

In U.S. v. Rojas, No. 04-10877 (Nov. 10, 2005), the Court held that a district court lacks subject matter jurisdiction, as part of a criminal proceeding, to adjudicate a dispute between an obligor who pledged collateral with a surety company for a bond for a criminal defendant out on bail, and the surety company, regarding the amount of money owed by the surety to the pledgor after the defendant failed to appear and the collateral was forfeited. The Court pointed out that the dispute did not involve the forfeiture of a bond "or any of that," but merely a contractual dispute over the indemnification contract. This dispute should have been resolved in a separate civil proceeding. The Court therefore vacated the order of the district court which directed payment by the surety to the obligor.

Jordan: No prosecutorial misconduct, no Double Jeopardy bar

In U.S. v. Jordan, No. 04-15381 (Nov. 3, 2005), the Court (Anderson, Black, Carnes), on a defendant’s interlocutory appeal, held that there was no basis for a Double Jeopardy bar to a second trial after the first trial had ended because the district court had found prosecutorial misconduct, but the Court of Appeals had determined that there was, in fact, no prosecutorial misconduct.
The defendant argued that even though the Court of Appeals had found no prosecutorial misconduct, the intent of the prosecutor was to goad the defense into making a motion for a mistrial, and that even though this motion was ultimately unsuccessful, Double Jeopardy should prevent further prosecution because the prosecution’s intent was wrongful.
The Court rejected the argument finding that it was precluded by the law of the case doctrine. The Court noted that a jurisdictional premise for its prior decision, which found no prosecutorial misconduct and reversed the district court’s dismissal of the case, was that Double Jeopardy would not bar further jurisdiction. Having held in its prior decision that it had jurisdiction to consider the government’s appeal, the Court implicitly held that Double Jeopardy would not bar further prosecution. This holding was now the law of the case, and doomed a Double Jeopardy challenge to further prosecution.
The Court further stated that, even if the law of the case had not applied, and even if it accepted the defendant’s "far fetched" theory that the prosecution opposed dismissal of the case on prosecutorial misconduct grounds while really trying to goad the defendant into seeking dismissal of the case, this theory would not support a Double Jeopardy bar. The Court held that prosecutorial misconduct – which it had no found present in this case – was a necessary element for a Double Jeopardy bar to apply in these circumstances.

Moriarty: Lifelong supervised release for sex offender

In U.S. v. Moriarty, No. 04-13683 (Nov. 1, 2005), the Court affirmed a conviction but reversed in part a sentence of a defendant who pled guilty to three counts of child pornography-related offenses.
The Court recognized that the district court failed during the plea colloquy to fully obtain a guilty plea from Moriarty, and to inform him of certain waivers which accompanied the decision to plead guilty. However, reviewing the matter to see if Moriarty’s "substantial rights" were affected, the Court noted that Moriarty responded "Because I am guilty" to the court’s questionind. Further, Moriarty could not show a "reasonable probability" that, but for the omitted plea information, he would not have pled guilty.
The Court rejected the argument that Booker error required reversal of Moriarty sentence. The Court pointed out that the district court at sentencing expressed intent to take Moriarty "out of society" by imposing the statutory maximum 240-month sentence and a lifelong term of supervised release. This indicated that Moriarty would not have received a lesser sentence under the advisory Guideline regime.
The Court also rejected the challenge to a USSG § 2G2.2(b)(4) five-level enhancement for a pattern of activity involving the sexual abuse of a minor (whether or not this conduct occurred during the course of the offense of conviction). At sentencing, one of Moriarty’s neighbors testified to a number of facts indicating that on one occasion, Moriarty had broken into her six-year old son’s bedroom, sexually assaulted him, and stolen his pull-up pajama pants. The Court found that this evidence sufficed to support the enhancement.
The Court also rejected the challenge to the district court’s refusal to grant a downward adjustment for acceptance of responsibility, despite Moriarty’s guilty plea. The Court noted that Moriarty contested the § 2G2.2(b)(4) enhancement, and that this was a basis for denying the acceptance of responsibility adjustment.
The Court rejected an Eighth Amendment challenge to the lifelong term of supervised release. The Court noted that Moriarty was 21 when he committed the offenses, but, regardless of his moral responsibility, the need for supervised release was to fulfill the goal of rehabilitation, and was consistent with the legislative history of the statute.
The Court, however, agreed with Moriarty that the "general sentence" of twenty years, which did not specify a specific count of conviction, and which exceeded the 10-year maximum for one count, was invalid . The Court vacated the sentence for "clarification" of the sentence. Similarly, the lifelong term of supervised release imposed as part of a general sentence was invalid, because the district court did not specify the count of conviction which supported this term of supervised release, and it exceeded the maximum for one count of conviction.

Dye: Sixth Circuit reversed on habeas

In Dye v. Hofbauer, No. 04-8384 (Oct. 11, 2005), the Supreme Court reversed the denial of habeas relief to a Michigan defendant. The Court found that the Sixth Circuit was wrong on both reasons it gave for denying habeas relief. Contrary to this opinion, first, the inmate did raise in state court a constitutional challenge to the prosecutor’s misconduct during the jury trial, and, second, the inmate did raise this same claim with sufficient particularity in his federal habeas petition.

Schriro v. Smith: States get first crack at mental retardation rules

In Schriro v. Smith, No. 04-1475 (Oct. 17, 2005), the Supreme Court summarily reversed the Ninth Circuit’s order requiring a jury trial on the question of the mental retardation of a Arizona defendant sentenced to death. The Court noted that Atkins v. Virginia, 536 U.S. 304 (2002) instructed the States to develop ways to enforce the constitutional restriction on the execution of the mentally retarded. The Ninth Circuit, therefore, was not authorized to impose a jury trial condition before Arizona developed its own procedures.

Eberhart: Rule 33 7-day deadline not jurisdictional

In Eberhart v. U.S., No. 04-9949 (Oct. 31, 2005), the Supreme Court held that the time limit of Fed. R. Crim. P. 33(a) for motions for a new trial, which requires such motions to be filed "within 7 days after the verdict or finding of guilty, or within such further time as the court sets during the 7-day period," is not jurisdictional. Instead, it is a "claim processing rule." Such rules are forfeitable by the party opposing the untimely motion if they are not properly invoked. The Court acknowledge confusion in its precedent which led Circuit Courts to treat Rule 33(a) as jurisdictional.

Kane: Pro se right to law library not clearly established

In Kane v. Espitia, No. 04-1538 (Oct. 31, 2005), the Supreme Court reversed the Ninth Circuit’s grant of habeas corpus relief to a California inmate who chose to proceed pro se but who was denied access to a law library in preparation for trial. The Court pointed out that its precedent, including Farretta v. California, 422 U.S. 806 (1975), had not clearly established whether a pro se defendant is entitled to library access, and in the absence of such caselaw one could not say that the California state rulings were contrary to clearly established law, as required by 28 U.S.C. § 2254(d)(1).http://a257.g.akamaitech.net/7/257/2422/31oct20051045/www.supremecourtus.gov/opinions/05pdf/04-1538.pdf