In U.S. v. Pipkins, No. 02-14306 (June 20, 2005), the Court reaffirmed its Levy rule, and, on remand from the Supreme Court for further consideration in light of Booker, held that a defendant could not raise a Booker challenge to his sentence for the first time in an en banc rehearing petition.
The Court recognized that prior to the Supreme Court’s decision in Blakely, its caselaw did not support a Blakely-type challenge to a sentence. "Even if our precedent at the time foreclosed their argument, the Defendants still had to raise this issue in their initial brief and assert that our precedent was wrongly decided in order for us to consider it. It is through this process that the law evolves."
Wednesday, June 22, 2005
Kelley: Bank robbery by intimidation
In U.S. v. Kelley, No 04-13002 (June 16, 2005), the Court (Carnes, Pryor, Forrester b.d.) rejected sufficiency of the evidence challenges to a conviction for bank robbery by "intimidation" in violation of 18 U.S.C. § 2113(a).
No weapon or note was used in the robbery. But the defendant slammed onto the teller counter hard enough that he was heard from another room. One teller was within arm’s length as cash was removed from another teller’s cash drawer. The tellers were so frightened that they failed to activate the bank’s silent alarm. Based on these facts, the Court concluded that the tellers were intimidated.
The Court also rejected the argument that the facts did not establish the taking of money "from the person or presence of another." One bank teller was within arm’s length. This fact "easily satisfied" the statutory element.
Finally, the Court rejected the argument that inconsistencies in the testimony of prosecution witnesses, and the testimony of defense witnesses, made the facts insufficient to sustain the bank robbery conviction. The Court noted that the jury was free to resolve the inconsistency in the government’s favor. Further, the defendant’s employer was unsure whether the defendant was at work on the date of the robbery, and his testimony therefore did not undermine the government’s case.
No weapon or note was used in the robbery. But the defendant slammed onto the teller counter hard enough that he was heard from another room. One teller was within arm’s length as cash was removed from another teller’s cash drawer. The tellers were so frightened that they failed to activate the bank’s silent alarm. Based on these facts, the Court concluded that the tellers were intimidated.
The Court also rejected the argument that the facts did not establish the taking of money "from the person or presence of another." One bank teller was within arm’s length. This fact "easily satisfied" the statutory element.
Finally, the Court rejected the argument that inconsistencies in the testimony of prosecution witnesses, and the testimony of defense witnesses, made the facts insufficient to sustain the bank robbery conviction. The Court noted that the jury was free to resolve the inconsistency in the government’s favor. Further, the defendant’s employer was unsure whether the defendant was at work on the date of the robbery, and his testimony therefore did not undermine the government’s case.
McGough: Community Caretaker Exception Inapplicable
In U.S. v. McGough, No. 04-12077 (June 15, 2005), the Court (Cox, Edmondson, Birch) held that the "community caretaker" exception to the Fourth Amendment prohibition on warrantless searches of home did not permit police to enter into an apartment without a warrant and without consent. The Court held that the defense motion to suppress the marijuana and firearm found in the apartment should have been granted, and reversed the conviction.
The police arrived at the home in response to a telephone call from the defendant’s scared 5-year old daughter, whom the defendant had locked in the apartment when he went out to buy pizza. The police unlocked the door, placed McGough under arrest for reckless conduct, and called the daughter’s aunt. While outside the apartment, the police noticed a heavy burglar door and a mounted surveillance camera. They asked the defendant for consent to search his home, which he declined. While waiting for the aunt to arrive, the police entered the apartment, ostensibly to help the daughter find some shoes, and found a firearm and marijuana. The police then sought a warrant and seized the marihuana and fiream, and another firearm, and more marihuana.
The Court recognized a "community caretaker" exception to the warrant requirement of the Fourth Amendment. This exception applies when "exigent circumstances" require police to respond to a situation at a home. The Court found no such circumstances in this case. "There was no immediate threat." The daughter’s need for her shoes was not a compelling enough exigency to justify a warrantless entry by police into McGough’s home.
The Court further found that the good faith exception to the exclusionary rule did not apply. This exception applies when a warrant issues after officers engage in "objectively reasonable law enforcement activity." Here, the warrant issued after police engaged in an unlawful entry. "In such a situation, the search warrant affidavit was tainted with evidence obtained as a result of a prior, warrantless, presumptively unlawful entry into a personal dwelling." Consequently, the evidence obtained as a result of the unlawful entry must be suppressed.
The police arrived at the home in response to a telephone call from the defendant’s scared 5-year old daughter, whom the defendant had locked in the apartment when he went out to buy pizza. The police unlocked the door, placed McGough under arrest for reckless conduct, and called the daughter’s aunt. While outside the apartment, the police noticed a heavy burglar door and a mounted surveillance camera. They asked the defendant for consent to search his home, which he declined. While waiting for the aunt to arrive, the police entered the apartment, ostensibly to help the daughter find some shoes, and found a firearm and marijuana. The police then sought a warrant and seized the marihuana and fiream, and another firearm, and more marihuana.
The Court recognized a "community caretaker" exception to the warrant requirement of the Fourth Amendment. This exception applies when "exigent circumstances" require police to respond to a situation at a home. The Court found no such circumstances in this case. "There was no immediate threat." The daughter’s need for her shoes was not a compelling enough exigency to justify a warrantless entry by police into McGough’s home.
The Court further found that the good faith exception to the exclusionary rule did not apply. This exception applies when a warrant issues after officers engage in "objectively reasonable law enforcement activity." Here, the warrant issued after police engaged in an unlawful entry. "In such a situation, the search warrant affidavit was tainted with evidence obtained as a result of a prior, warrantless, presumptively unlawful entry into a personal dwelling." Consequently, the evidence obtained as a result of the unlawful entry must be suppressed.
Tuesday, June 21, 2005
Bradshaw v. Stumpf: Inconsistency on triggerman's identity
In Bradshaw v. Stumpf, No. 04-637 (June 13, 2005), the Supreme Court held that a defendant entered into a knowing guilty plea, despite the trial court’s failure to explain the specific intent to cause death element of the aggravated murder charge, when the elements of the crime were explained to the defendant by his competent defense counsel, and where the defendant so confirmed on the record.
The Court rejected the argument that Stumpf’s profession of not having been the triggerman was inconsistent with a knowing guilty plea. The Court noted that under Ohio aider and abetter theory, Stumpf could have been guilty of the offense without being the actual triggerman. The Court also rejected the argument that the plea was involuntary because the prosecution later took the inconsistent position that Stumpf was not the triggerman. The Court noted that the precise identity of the triggerman was irrelevant to the conviction.
The Court recognized, however, that the prosecution’s inconsistent position as to whether Stumpf or his accomplice was the triggerman could have affeced his death sentence. The Court pointed out that the Sixth Circuit’s opinion on this subject was ambiguous, because it focused on the validity of the conviction, not of the sentence. The Court therefore remanded the case for further proceedings to address the question of how the prosecutor’s inconsistent position related to the validity of Stumpf’s death sentence.
The Court rejected the argument that Stumpf’s profession of not having been the triggerman was inconsistent with a knowing guilty plea. The Court noted that under Ohio aider and abetter theory, Stumpf could have been guilty of the offense without being the actual triggerman. The Court also rejected the argument that the plea was involuntary because the prosecution later took the inconsistent position that Stumpf was not the triggerman. The Court noted that the precise identity of the triggerman was irrelevant to the conviction.
The Court recognized, however, that the prosecution’s inconsistent position as to whether Stumpf or his accomplice was the triggerman could have affeced his death sentence. The Court pointed out that the Sixth Circuit’s opinion on this subject was ambiguous, because it focused on the validity of the conviction, not of the sentence. The Court therefore remanded the case for further proceedings to address the question of how the prosecutor’s inconsistent position related to the validity of Stumpf’s death sentence.
Monday, June 20, 2005
Rompilla: Failure to consult court records is ineffective assistance
In Rompilla v. Beard, No. 04-5462 (June 20, 2005), the Supreme Court held that capital counsel’s assistance in the penalty phase was constitutionally ineffective when he failed to examine the material he knew the prosecutor would rely on as evidence of aggravation. Counsel failed to examine the court file on Rompilla’s prior felony convictions – a file which was readily available. This was objectively unreasonable, and counsel’s consultation with the defendant and his family was not a sufficient substitute. The Court held that the lawyer’s lapse prejudiced the defendant, because the court record would have unearthed mitigation leads – such as the defendant’s mental disorders and organic brain damage and childhood problems probably related to fetal alcohol syndrome.
Tuesday, June 14, 2005
Matthews: 404(b) reversal
In U.S. v. Matthews, 2005 WL 1334341 (June 8, 2005), the Court (Tjoflat, Hill, Granade b.d.) reversed the defendant’s drug-trafficking conviction on the ground that evidence of a prior arrest was erroneously admitted in violation of Fed. R. Evid. 404(b).
At trial, the government relied solely on the testimony of co-conspirators who were testifying in exchange for sentence reductions. These cooperating witnesses testified that Matthews participated in an ongoing drug-trafficking conspiracy, and then obtructed justice by intimidating them while they were in jail, cooperating with the government.
The Court rejected the argument that wiretap evidence should have been excluded because the recordings were not sealed in accordance with 18 U.S.C. § 2518(8)(a). The Court noted that the recordings were sealed within two days of the expiration of the order authorizing interception, and held that this was a reasonable time within the meaning of the statute.
The Court also rejected the argument that one conversation among two conspirators in which Matthews’ name was mentioned should have been excluded because it was not in "furtherance of the conspiracy." The Court found that one could have concluded otherwise.
The Court also rejected the challenge to the sufficiency of the obstruction evidence. "The jury was, of course, free to infer that Matthews was merely passing on along news of [a former conspirator’s] unfortunate demise, reflecting on the fleeting nature of human existence, and sending greetings." But the jury could also have drawn other inferences from the references by Matthews in a letter to a conspirator about another conspirator’s execution when he began cooperating with the government.
Turning to the 404(b) issue, the Court rejected the government’s argument that evidence of an earlier arrest for drug trafficking could be introduced to show the defendant’s "intent" in the instant charged offense. The Court pointed out that the uncontradicted testimony of the cooperating witnesses was that Matthews had participated in significant drug trafficking activities. Had the jury believed these witnesses, intent would not have been at issue. Matthews could not have participated in these activities without the requisite criminal intent. The prior arrest, therefore, was introduced not to show intent, but to buttress the credibility of the cooperating witnesses by showing Matthews’ propensity for drug trafficking. This is precisely what Rule 404(b) prohibits.
The Court found that the error was not harmless, pointing out that the prosecutor relied heavily on the prior arrest in closing argument, as the "glue" that held its witnesses’ stories together.
At trial, the government relied solely on the testimony of co-conspirators who were testifying in exchange for sentence reductions. These cooperating witnesses testified that Matthews participated in an ongoing drug-trafficking conspiracy, and then obtructed justice by intimidating them while they were in jail, cooperating with the government.
The Court rejected the argument that wiretap evidence should have been excluded because the recordings were not sealed in accordance with 18 U.S.C. § 2518(8)(a). The Court noted that the recordings were sealed within two days of the expiration of the order authorizing interception, and held that this was a reasonable time within the meaning of the statute.
The Court also rejected the argument that one conversation among two conspirators in which Matthews’ name was mentioned should have been excluded because it was not in "furtherance of the conspiracy." The Court found that one could have concluded otherwise.
The Court also rejected the challenge to the sufficiency of the obstruction evidence. "The jury was, of course, free to infer that Matthews was merely passing on along news of [a former conspirator’s] unfortunate demise, reflecting on the fleeting nature of human existence, and sending greetings." But the jury could also have drawn other inferences from the references by Matthews in a letter to a conspirator about another conspirator’s execution when he began cooperating with the government.
Turning to the 404(b) issue, the Court rejected the government’s argument that evidence of an earlier arrest for drug trafficking could be introduced to show the defendant’s "intent" in the instant charged offense. The Court pointed out that the uncontradicted testimony of the cooperating witnesses was that Matthews had participated in significant drug trafficking activities. Had the jury believed these witnesses, intent would not have been at issue. Matthews could not have participated in these activities without the requisite criminal intent. The prior arrest, therefore, was introduced not to show intent, but to buttress the credibility of the cooperating witnesses by showing Matthews’ propensity for drug trafficking. This is precisely what Rule 404(b) prohibits.
The Court found that the error was not harmless, pointing out that the prosecutor relied heavily on the prior arrest in closing argument, as the "glue" that held its witnesses’ stories together.
Thursday, May 26, 2005
Henderson: Polygraph evidence can be excluded
In U.S. v. Henderson, No. 04-11545 (Barkett, Farris, b.d.) (Hill dissenting), the Court affirmed a conviction of a police officer for pistol whipping a suspect, rejecting a number of challenges to evidentiary rulings.
The Court rejected the argument that the trial court should not have excluded proffered evidence concerning a witness’ bias. The Court noted that the evidence might not have been properly proffered, but ruled in any event that that the danger of unfair prejudice outweighed the evidence’s probative value.
The Court also rejected the argument that the trial court should have excluded a witness’ testimony about his belief in the credibility of the victim’s account of events. The Court recognized that ordinarily such evidence is inadmissible. However, in this case the government was attempting to respond to questions on cross-examination that attempted to discredit the witness for changing his mind about which person he believed. The evidence was admitted not to bolster the credibility of another witness, but to explain why this witness changed his mind as to who he believed.
The Court agreed with the defendant that the victim’s treating physician should not have been permitted to testify regarding his opinion regarding the cause of the jaw injury. Such questions are in the nature of "hypotheticals" reserved for expert witnesses. However, the Court found the error to be harmless in light of the other evidence of guilt.
The Court upheld the exclusion of evidence of two polygraph exams of the defendant which supported his defense. The Court found the exclusion of this evidence proper under Daubert. The Court noted that the theories of polygraphy could not adequately be tested. Further, the error rate for polygraphs "is not much more reliable than random chance." The exclusion therefore was not an abuse of discretion.
The Court further rejected a challenge to the policy of the Middle District of Florida of excluding police officers from jury venires. The Court noted that enforcement officers compose less than 0.55% of eligible jurors, and noted the significant state interest in having enforcement officers at work, not sitting on juries.
Turning to Henderson’s sentence, the Court found Booker "plain error." The district judge imposed the lowest possible sentence and staetd that she thought the sentence was too high but was bound by the guidelines in any case. In these circumstances, the defendant has met his burden of proving prejudice. The Court remanded the case for resentencing.
The Court rejected the argument that the trial court should not have excluded proffered evidence concerning a witness’ bias. The Court noted that the evidence might not have been properly proffered, but ruled in any event that that the danger of unfair prejudice outweighed the evidence’s probative value.
The Court also rejected the argument that the trial court should have excluded a witness’ testimony about his belief in the credibility of the victim’s account of events. The Court recognized that ordinarily such evidence is inadmissible. However, in this case the government was attempting to respond to questions on cross-examination that attempted to discredit the witness for changing his mind about which person he believed. The evidence was admitted not to bolster the credibility of another witness, but to explain why this witness changed his mind as to who he believed.
The Court agreed with the defendant that the victim’s treating physician should not have been permitted to testify regarding his opinion regarding the cause of the jaw injury. Such questions are in the nature of "hypotheticals" reserved for expert witnesses. However, the Court found the error to be harmless in light of the other evidence of guilt.
The Court upheld the exclusion of evidence of two polygraph exams of the defendant which supported his defense. The Court found the exclusion of this evidence proper under Daubert. The Court noted that the theories of polygraphy could not adequately be tested. Further, the error rate for polygraphs "is not much more reliable than random chance." The exclusion therefore was not an abuse of discretion.
The Court further rejected a challenge to the policy of the Middle District of Florida of excluding police officers from jury venires. The Court noted that enforcement officers compose less than 0.55% of eligible jurors, and noted the significant state interest in having enforcement officers at work, not sitting on juries.
Turning to Henderson’s sentence, the Court found Booker "plain error." The district judge imposed the lowest possible sentence and staetd that she thought the sentence was too high but was bound by the guidelines in any case. In these circumstances, the defendant has met his burden of proving prejudice. The Court remanded the case for resentencing.
Mathenia: Constitutional vs. statutory Booker error
In U.S. v. Mathenia, No. 04-15250 (May 23, 2005) (Black, Carnes, Pryor), the Court affirmed a sentence of a defendant convicted of distributing and receiving child pornography.
The defendant received a 96-month sentence. His Guideline range was 87-108 months.
The Court noted that there are two Booker errors, a "constitutional" error and a "statutory" error. The constitutional error is the use of extra-verdict enhancements to reach a guidelines result. The statutory error is in the use of mandatory guidelines. The constitutional error is reviewed for harmlessness, with the government bearing the burden of showing that the error did not contribute to the defendant’s sentence. The statutory error is reviewed under a less demanding test, where a court determines whether one can say that the error "had but a very slight effect." The Court noted that Mathenia raised a statutory error.
In the instant case, the district court stated at sentencing that it would impose "the same" sentence if the guidelines were just advisory. Under these circumstances, the Court noted, it had previously held that the government met the more demanding constitutional standard. Thus, there was no error under the less demanding statutory error case: the error "had but a slight effect."
The defendant received a 96-month sentence. His Guideline range was 87-108 months.
The Court noted that there are two Booker errors, a "constitutional" error and a "statutory" error. The constitutional error is the use of extra-verdict enhancements to reach a guidelines result. The statutory error is in the use of mandatory guidelines. The constitutional error is reviewed for harmlessness, with the government bearing the burden of showing that the error did not contribute to the defendant’s sentence. The statutory error is reviewed under a less demanding test, where a court determines whether one can say that the error "had but a very slight effect." The Court noted that Mathenia raised a statutory error.
In the instant case, the district court stated at sentencing that it would impose "the same" sentence if the guidelines were just advisory. Under these circumstances, the Court noted, it had previously held that the government met the more demanding constitutional standard. Thus, there was no error under the less demanding statutory error case: the error "had but a slight effect."
Silvestri: Money laundering conviction upheld
In U.S. v. Silvestri, (May 23, 2005), the Court (Black, Marcus, Smith b.d.) upheld the conviction and sentence of a defendant convicted of money laundering the proceeds of an elaborate mail fraud.
The Court rejected challenges to the sufficiency of the evidence. The Court noted that for a the conspiracy counted, the government only had to show that the defendant knew either the insufficiency of the assets of the corporation into which investors were told to invest, or the illegitimate use of investor’s funds. The Court found that the government showed that the defendant "well knew of both aspects of the fraud."
The Court also rejected a sufficiency of the evidence challenge to the convictions for substantive money laundering. The Court rejected the argument that mere deposit of investor funds into bank accounts could not constitute money laundering. The Court recognized the caselaw which holds that money laundering cannot occur until the unlawful activity is completed. The Court pointed out, however, that for mail fraud, the crime is complete before the checks are deposited, as the offense is already complete when the letter containing a false representation is put in the mail.
The Court also rejected the argument that Silvestri should not be held accountable for the acts of co-conspirators for which he lacked knowledge. Citing the Pinkerton doctrine, the Court noted that the government need only show that the co-conspirator’s conduct was "reasonably foreseeable" to the defendant. The Court found that the government met this burden.
The Court rejected a challenge to a jury instruction. Citing the "invited error" doctrine, the Court pointed out that when a lawyer responds to a proposed instruction with the words "the instruction is acceptable to us," such action constitutes invited error. Here, defense counsel expressly accepted the language of the now-challenged instruction.
Finally, citing U.S. v. Levy, 379 F.3d 1241 (11th Cir. 2004), the Court rejected a Booker challenge to the sentence, pointing out that the issue was not raised in Silvestri’s initial brief, and was therefore waived.
The Court rejected challenges to the sufficiency of the evidence. The Court noted that for a the conspiracy counted, the government only had to show that the defendant knew either the insufficiency of the assets of the corporation into which investors were told to invest, or the illegitimate use of investor’s funds. The Court found that the government showed that the defendant "well knew of both aspects of the fraud."
The Court also rejected a sufficiency of the evidence challenge to the convictions for substantive money laundering. The Court rejected the argument that mere deposit of investor funds into bank accounts could not constitute money laundering. The Court recognized the caselaw which holds that money laundering cannot occur until the unlawful activity is completed. The Court pointed out, however, that for mail fraud, the crime is complete before the checks are deposited, as the offense is already complete when the letter containing a false representation is put in the mail.
The Court also rejected the argument that Silvestri should not be held accountable for the acts of co-conspirators for which he lacked knowledge. Citing the Pinkerton doctrine, the Court noted that the government need only show that the co-conspirator’s conduct was "reasonably foreseeable" to the defendant. The Court found that the government met this burden.
The Court rejected a challenge to a jury instruction. Citing the "invited error" doctrine, the Court pointed out that when a lawyer responds to a proposed instruction with the words "the instruction is acceptable to us," such action constitutes invited error. Here, defense counsel expressly accepted the language of the now-challenged instruction.
Finally, citing U.S. v. Levy, 379 F.3d 1241 (11th Cir. 2004), the Court rejected a Booker challenge to the sentence, pointing out that the issue was not raised in Silvestri’s initial brief, and was therefore waived.
Wednesday, May 18, 2005
Gallegos-Aguero: Maximum allowable sentence means no Booker error
In U.S. v. Gallegos-Aguerro, No. 04-14242 (May 18, 2005), the Court (Barkett, Hull, Wilson) held that Booker did not affect the viability of Almendarez-Torres v. U.S., 523 U.S. 224 (1998), and rejected the argument that a judge not make fact-findings concerning a prior conviction in order to enhance by 16 levels a sentence for a defendant convicted of illegal re-entry following a conviction for an aggravated felony. The Court found no Sixth Amendment error.
The Court noted that there was error under the Booker rule that the Guidelines are advisory, not mandatory. This error, however, was harmless. The district judge sentenced the defendant to the longest sentence permitted under his Guideline range, i.e. the maximum allowable. Hence, there was no actual prejudice to the defendant.
The Court noted that there was error under the Booker rule that the Guidelines are advisory, not mandatory. This error, however, was harmless. The district judge sentenced the defendant to the longest sentence permitted under his Guideline range, i.e. the maximum allowable. Hence, there was no actual prejudice to the defendant.
Petho: No Booker error where judge said "same sentence" under nonbinding guidelines
In U.S. v. Petho, No. 04-15412 (May 18, 2005), the Court (Barkett, Hull & Wilson) found no Booker error and affirmed a sentence for a defendant convicted of bank robbery.
The defendant had preserved a Booker objection to his sentence in the district court, but the Court found any Booker error harmless. The Court noted that the district court, in imposing a 37-month Guideline sentence, stated that it would have imposed the "same sentence" if the guidelines were non-binding. The Court also noted that there was no Sixth Amendment error because the defendant admitted the enhancing facts – passing a threatening note – at his plea colloquy.
The defendant had preserved a Booker objection to his sentence in the district court, but the Court found any Booker error harmless. The Court noted that the district court, in imposing a 37-month Guideline sentence, stated that it would have imposed the "same sentence" if the guidelines were non-binding. The Court also noted that there was no Sixth Amendment error because the defendant admitted the enhancing facts – passing a threatening note – at his plea colloquy.
Fields: low end Guideline sentence is not Booker plain error
In U.S. v. Fields, No. 04-12486 (May 16, 2005), the Court (Carnes, Pryor, Forrester b.d.) affirmed the 360-month sentence imposed on a defendant convicted of cocaine trafficking.
The Court rejected the argument that a two-level for firearm possession should not have been imposed. The Court noted that the enhancement applies unless the defendant can show that it was clearly improbable that the firearm was connected with the offense. The firearms were present at locations at which co-conspirators were dealing drugs. The Court noted that one co-conspirator was the defendant’s cousin, in almost daily contact, and this close relationship increased the probability of a connection between the firearm and the narcotics trafficking.
The Court also rejected the argument that a supervisory role enhancement should not have applied because there were less than 5 participants in the offense. The Court counted at least five participants involved.
Finally, the Court found no plain error under Booker. The defendant argued that the third prong of plain error – the probability of a different result under advisory guidelines – was satisfied because the judge imposed a sentence at the low end of the guideline. The Court cited the decisions in four other circuits holding that this alone did not show "actual prejudice" from the sentence. "The fact that the district court went as low as it could under the mandatory guidelines system, without more, is not enough [to show plain error]."
The Court rejected the argument that a two-level for firearm possession should not have been imposed. The Court noted that the enhancement applies unless the defendant can show that it was clearly improbable that the firearm was connected with the offense. The firearms were present at locations at which co-conspirators were dealing drugs. The Court noted that one co-conspirator was the defendant’s cousin, in almost daily contact, and this close relationship increased the probability of a connection between the firearm and the narcotics trafficking.
The Court also rejected the argument that a supervisory role enhancement should not have applied because there were less than 5 participants in the offense. The Court counted at least five participants involved.
Finally, the Court found no plain error under Booker. The defendant argued that the third prong of plain error – the probability of a different result under advisory guidelines – was satisfied because the judge imposed a sentence at the low end of the guideline. The Court cited the decisions in four other circuits holding that this alone did not show "actual prejudice" from the sentence. "The fact that the district court went as low as it could under the mandatory guidelines system, without more, is not enough [to show plain error]."
Wednesday, May 11, 2005
Custer: Booker Error Preserved
In U.S. v. Custer, No. 04-14111 (April 13, 2005), the Court withdrew its earlier pre-Booker published opinion, and entered a decision holding, on harmless error review, that the district court erred under Booker when it imposed Guideline sentence enhancements on a defendant convicted of distribution of child pornography. The Court pointed out that the defendant’s plea agreement did not waive his right to assert a Booker challenge on appeal.
Robles: Booker error is harmless
In U.S. v. Robles, No. 04-13598 (May 10, 2005), the Court held that any Booker error in the sentence enhancements based on "relevant conduct" under the Guidelines was harmless beyond a reasonable doubt, because the district court at sentencing stated that its sentence would be the same if it imposed an alternative sentence under advisory guidelines.
The Court rejected the argument that the error in imposing a Guideline sentence was not harmless because post-Booker a sentencing court could take account of matters not ordinarily relevant, like a defendant’s age. The Court found that the sentencing court’s statements made clear that it did not feel limited in what evidence it could consider. The Court also rejected the argument that the district court could now take account of the factors listed at 18 U.S.C. § 3553(a). The Court was "at a loss" to see how these factors could possibly change the result. The court added that it did not expect a sentencing court post-Booker to conduct an accounting of every § 3553(a) factor and expound on its role in its sentencing decision.
The Court rejected the argument that the error in imposing a Guideline sentence was not harmless because post-Booker a sentencing court could take account of matters not ordinarily relevant, like a defendant’s age. The Court found that the sentencing court’s statements made clear that it did not feel limited in what evidence it could consider. The Court also rejected the argument that the district court could now take account of the factors listed at 18 U.S.C. § 3553(a). The Court was "at a loss" to see how these factors could possibly change the result. The court added that it did not expect a sentencing court post-Booker to conduct an accounting of every § 3553(a) factor and expound on its role in its sentencing decision.
Monday, May 09, 2005
Davis: Booker error not harmless despite departure
In U.S. v. Davis, 2005 WL 1033422 (May 4, 2005), the Court (Anderson, Carnes, Marcus) vacated a sentence and remanded for resentencing consistent with Booker.
Pre-Booker, the defendant objected in the district court, and again in his initial brief on appeal, that the district court’s reliance on drug quantity as a basis for his sentence violated his Sixth Amendment rights. The Court agreed finding that the error was not harmless. The Court rejected the government’s argument that the error was harmless because the sentencing court already departed downward, on the basis of the defendant’s assistance to authorities. The Court noted that under the Guideline departure authority, the district court had not enjoyed "unfettered" discretion, but only discretion within the substantial assistance guideline. The Court said it simply did not know how the district court would have imposed sentence had it known the Guidelines were "advisory," and therefore the government, on harmless error review, could not meet its burden of showing the district court’s error was "harmless."
Pre-Booker, the defendant objected in the district court, and again in his initial brief on appeal, that the district court’s reliance on drug quantity as a basis for his sentence violated his Sixth Amendment rights. The Court agreed finding that the error was not harmless. The Court rejected the government’s argument that the error was harmless because the sentencing court already departed downward, on the basis of the defendant’s assistance to authorities. The Court noted that under the Guideline departure authority, the district court had not enjoyed "unfettered" discretion, but only discretion within the substantial assistance guideline. The Court said it simply did not know how the district court would have imposed sentence had it known the Guidelines were "advisory," and therefore the government, on harmless error review, could not meet its burden of showing the district court’s error was "harmless."
Williams: no Booker plain error
In U.S. v. Williams, 2005 WL 1058931 (May 6, 2005), the Court (Birch, Black, Pryor) held that the defendant failed to establish Booker plain error in the sentence enhancement for brandishing or possessing a firearm during robberies.
The Court noted that, after the hearing the testimony of witnesses, the district court concluded that the defendant did possess a gun during his robberies, and that the defendant was lying when he denied having possessed a firearm during these crimes. The Court concluded that it was "obvious" from the sentencing transcript that if the case were sent back down, the district court would impose the enhancemnents "again." Similarly, the district court made clear that it would not grant a sentence reduction for acceptance of responsibility, and, again, it was clear that a remand on this issue would be pointless. The defendant, therefore, failed to satisfy the third prong of the Eleventh Circuit’s Booker plain error analysis, i.e., showing that a lower sentence would have resulted had the district court known that the Guidelines were not mandatory.
The Court noted that, after the hearing the testimony of witnesses, the district court concluded that the defendant did possess a gun during his robberies, and that the defendant was lying when he denied having possessed a firearm during these crimes. The Court concluded that it was "obvious" from the sentencing transcript that if the case were sent back down, the district court would impose the enhancemnents "again." Similarly, the district court made clear that it would not grant a sentence reduction for acceptance of responsibility, and, again, it was clear that a remand on this issue would be pointless. The defendant, therefore, failed to satisfy the third prong of the Eleventh Circuit’s Booker plain error analysis, i.e., showing that a lower sentence would have resulted had the district court known that the Guidelines were not mandatory.
Tuesday, May 03, 2005
Crawford: Incorrect advisory Guideline calculation
In U.S. v. Crawford, No. 03-15136 (May 2, 2005) (Edmondson, Marcus, Pryor), the Court reversed a district court’s sentencing finding that a defendant did not engage in more than minimal planning, and reversed a district court’s downward departure based on restitution. The Court remanded the case for resentencing in the advisory manner explicated by Booker.
The Court recognized that Booker had required a "reasonableness" standard on appellate review of sentences. The Court found that this reasonableness standard did not affect appellate review of the application of the sentencing guidelines. The Court noted that Booker requires a district court to "consult" and "take into account" the Guidelines. This "consultation requirement" obliges the courts to calculate correctly the sentencing range prescribed by the Guidelines.
The Court noted that the more than minimal planning Guideline focuses on "repeated acts over a period of time" which indicate greater culpability. The Court recognized a narrow exception for conduct in response to a sudden, fortuitous opportunity of which the defendant took advantage without deliberation. The Court noted that Crawford wrote 184 checks in furtherance of his illegal scheme. He had many opportunities to consider the consequences of his actions, but never ceased participation. Thus, contrary to the district court’s finding, the defendant’s conduct was not the product of fortuity, and the more than minimal planning enhancement applied.
The Court also reversed the downward departure based on restitution and remorse. The Court noted that the district court ruled before it had the opportunity to consider the Court’s extraordinary restitution opinion in U.S. v. Kim. Therefore, on remand, the Court "must apply the Kim test." The Court rejected as a basis for downward departure the use of unsophisticated means: "A defendant who uses unsophisticated means is not to be rewarded for lack of imagination."
Further, because the government had not filed a substantial assistance motion, assistance was not a basis for downward departure.
Finally, the Court recognized that the reliance on the disproportionate amount of loss amount was a valid basis for departure. The Court noted that "the amount of loss appears proportionate to the criminal acts committed by Crawford."
The Court found that the sentence was based on "an erroneous understanding of the Guidelines." The Court instructed the district court to calculate an advisory guideline range that includes more than minimal planning and considers a downward departure in a range consistent with its opinion.
The Court recognized that Booker had required a "reasonableness" standard on appellate review of sentences. The Court found that this reasonableness standard did not affect appellate review of the application of the sentencing guidelines. The Court noted that Booker requires a district court to "consult" and "take into account" the Guidelines. This "consultation requirement" obliges the courts to calculate correctly the sentencing range prescribed by the Guidelines.
The Court noted that the more than minimal planning Guideline focuses on "repeated acts over a period of time" which indicate greater culpability. The Court recognized a narrow exception for conduct in response to a sudden, fortuitous opportunity of which the defendant took advantage without deliberation. The Court noted that Crawford wrote 184 checks in furtherance of his illegal scheme. He had many opportunities to consider the consequences of his actions, but never ceased participation. Thus, contrary to the district court’s finding, the defendant’s conduct was not the product of fortuity, and the more than minimal planning enhancement applied.
The Court also reversed the downward departure based on restitution and remorse. The Court noted that the district court ruled before it had the opportunity to consider the Court’s extraordinary restitution opinion in U.S. v. Kim. Therefore, on remand, the Court "must apply the Kim test." The Court rejected as a basis for downward departure the use of unsophisticated means: "A defendant who uses unsophisticated means is not to be rewarded for lack of imagination."
Further, because the government had not filed a substantial assistance motion, assistance was not a basis for downward departure.
Finally, the Court recognized that the reliance on the disproportionate amount of loss amount was a valid basis for departure. The Court noted that "the amount of loss appears proportionate to the criminal acts committed by Crawford."
The Court found that the sentence was based on "an erroneous understanding of the Guidelines." The Court instructed the district court to calculate an advisory guideline range that includes more than minimal planning and considers a downward departure in a range consistent with its opinion.
Dacus: Booker plain error where judge would have departed downward
In U.S. v. Dacus, No. 04-15319 (May 3, 2005), the Court held that Booker "plain error" occurred at sentencing when the district stated that if it had the authority to depart downward, it would have done based on Dacus’ rehabilitation efforts.
The Court noted that the defendant failed to raise a Booker challenge in his initial brief, but did not find this was a waiver because of the government’s concession of sentencing error on appeal.
The Court noted that at sentencing, "Dacus did not object to the conclusion of the district court that it was bound by the Guidelines as mandatory." [Note: at the time of sentencing, the Guidelines were mandatory]. The Court therefore reviewed the error for "plain error." Here, the error was "plain," because the district said it would have considered a downward departure but for the mandatory nature of the Guidelines. This showed a reasonable probability of a different result on resentencing. The Court therefore vacated the sentence and remanded for resentencing.
The Court noted that the defendant failed to raise a Booker challenge in his initial brief, but did not find this was a waiver because of the government’s concession of sentencing error on appeal.
The Court noted that at sentencing, "Dacus did not object to the conclusion of the district court that it was bound by the Guidelines as mandatory." [Note: at the time of sentencing, the Guidelines were mandatory]. The Court therefore reviewed the error for "plain error." Here, the error was "plain," because the district said it would have considered a downward departure but for the mandatory nature of the Guidelines. This showed a reasonable probability of a different result on resentencing. The Court therefore vacated the sentence and remanded for resentencing.
Burge: ACCA prior juvenile convictions count
In U.S. v. Burge, No. 04-13468 (May 2, 2005), the Court (Edmondson, Dubina, Hull) affirmed the constitutionality of a sentence imposed under the Armed Career Criminal Act.
The Court rejected the argument that Burge’s prior conviction under a juvenile charge of burglary in the first degree should not be counted as one of three qualifying prior convictions under ACCA.
The Court first rejected the argument that the prior burglary conviction should not be counted because it could committed in one of three ways under the State statute, and it was unclear which way it was convicted. The Court noted that under Shephard v. U.S., 125 S.Ct. 1254 (2005), a court can consider the charging document, plea agreement or plea colloquy to determine the nature of a prior conviction. Here these documents showed that Burge was adjudicated delinquent for committing first degree burglary while carrying a firearm, and his conviction therefore satisfied ACCA.
The Court also rejected the argument that a prior conviction should not be found by a judge where the prior juvenile proceeding did not involve a jury trial. The Court recognized a circuit split on this issue. The Court sided with the view juvenile adjudications provide "sufficient safeguards" to ensure reliability. Hence, it was permissible for a judge, and not a jury, to make findings about the meaning of the prior conviction.
Finally, the Court found no Booker error in the imposition of a one level enhancement for pointing a gun, finding that the defendant had not shown that a different sentence would result on resentencing.
The Court rejected the argument that Burge’s prior conviction under a juvenile charge of burglary in the first degree should not be counted as one of three qualifying prior convictions under ACCA.
The Court first rejected the argument that the prior burglary conviction should not be counted because it could committed in one of three ways under the State statute, and it was unclear which way it was convicted. The Court noted that under Shephard v. U.S., 125 S.Ct. 1254 (2005), a court can consider the charging document, plea agreement or plea colloquy to determine the nature of a prior conviction. Here these documents showed that Burge was adjudicated delinquent for committing first degree burglary while carrying a firearm, and his conviction therefore satisfied ACCA.
The Court also rejected the argument that a prior conviction should not be found by a judge where the prior juvenile proceeding did not involve a jury trial. The Court recognized a circuit split on this issue. The Court sided with the view juvenile adjudications provide "sufficient safeguards" to ensure reliability. Hence, it was permissible for a judge, and not a jury, to make findings about the meaning of the prior conviction.
Finally, the Court found no Booker error in the imposition of a one level enhancement for pointing a gun, finding that the defendant had not shown that a different sentence would result on resentencing.
Burge: ACCA counts prior juvenile adjudications
In U.S. v. Burge, No. 04-13468 (May 2, 2005), the Court (Edmondson, Dubina, Hull) affirmed the constitutionality of a sentence imposed under the Armed Career Criminal Act.
The Court rejected the argument that Burge’s prior conviction under a juvenile charge of burglary in the first degree should not be counted as one of three qualifying prior convictions under ACCA.
The Court first rejected the argument that the prior burglary conviction should not be counted because it could committed in one of three ways under the State statute, and it was unclear which way it was convicted. The Court noted that under Shephard v. U.S., 125 S.Ct. 1254 (2005), a court can consider the charging document, plea agreement or plea colloquy to determine the nature of a prior conviction. Here these documents showed that Burge was adjudicated delinquent for committing first degree burglary while carrying a firearm, and his conviction therefore satisfied ACCA.
The Court also rejected the argument that a prior conviction should not be found by a judge where the prior juvenile proceeding did not involve a jury trial. The Court recognized a circuit split on this issue. The Court sided with the view juvenile adjudications provide "sufficient safeguards" to ensure reliability. Hence, it was permissible for a judge, and not a jury, to make findings about the meaning of the prior conviction.
Finally, the Court found no Booker error in the imposition of a one level enhancement for pointing a gun, finding that the defendant had not shown that a different sentence would result on resentencing.
The Court rejected the argument that Burge’s prior conviction under a juvenile charge of burglary in the first degree should not be counted as one of three qualifying prior convictions under ACCA.
The Court first rejected the argument that the prior burglary conviction should not be counted because it could committed in one of three ways under the State statute, and it was unclear which way it was convicted. The Court noted that under Shephard v. U.S., 125 S.Ct. 1254 (2005), a court can consider the charging document, plea agreement or plea colloquy to determine the nature of a prior conviction. Here these documents showed that Burge was adjudicated delinquent for committing first degree burglary while carrying a firearm, and his conviction therefore satisfied ACCA.
The Court also rejected the argument that a prior conviction should not be found by a judge where the prior juvenile proceeding did not involve a jury trial. The Court recognized a circuit split on this issue. The Court sided with the view juvenile adjudications provide "sufficient safeguards" to ensure reliability. Hence, it was permissible for a judge, and not a jury, to make findings about the meaning of the prior conviction.
Finally, the Court found no Booker error in the imposition of a one level enhancement for pointing a gun, finding that the defendant had not shown that a different sentence would result on resentencing.
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