December 13, 2010
Supreme Court to Address Whether Sentencing Judge Can Impose a Longer Term of Imprisonment to Promote Rehabilitation
The Supreme Court on Friday granted certiorari in Tapia v. United States, (No. 10-5400) to address whether "a district court [may] give a defendant a longer prison sentence to promote rehabilitation, as the Eighth and Ninth Circuits have held, or is such a factor prohibited, as the Second, Third, Eleventh, and D.C. Circuits have held?" At sentencing, the district court stated that it was imposing a 51-month sentence, higher than the mandatory minimum requested by Ms. Tapia, in part so she would be "in long enough to get the 500 Hour Drug Program." On appeal, Ms. Tapia argued that the district court committed plain error by imposing a longer term of imprisonment based on the possibility that she would be able to complete the BOP's drug treatment program, in violation of 18 U.S.C.§ 3582(a). The statute provides:
"The court in determining whether to impose a term of imprisonment, and, if a term of imprisonment is to be imposed, in determining the length of the term, shall consider the factors set forth in section 3553(a) to the extent that they are applicable, recognizing that imprisonment is not an appropriate means of promoting correction and rehabilitation."
The Ninth Circuit affirmed. In response to Ms. Tapia's cert petition, the government agreed that section 3582(a) prohibits considering a defendant's rehabilitative needs as a factor in setting the duration of her prison sentence. It nonetheless argued against granting the petition, stating, "Petitioner failed to preserve her claim in the district court and cannot prevail under a plain-error standard of review. Furthermore, because the government is in the process of informing the Ninth Circuit and other courts of appeals of the government's interpretation of Section 3582(a), the conflict among the circuits on that issue may well resolve on its own." (See Brief in Opposition.)
November 15, 2010
Supreme Court Issues Opinion on Consecutive Sentencing Under 924(c); Grants Certiorari in Two Criminal Cases to Address Exclusionary Rule and Federal Murder Law (18 U.S.C. § 1512(a)(1)(c))
The Supreme Court today issued its opinion in Abbott v. United States and Gould v. United States (Nos. 09-479 and 09-7073), holding that "a defendant is subject to a mandatory, consecutive sentence for a § 924(c) conviction, and is not spared from that sentence by virtue of receiving a higher mandatory minimum on a different count of conviction." At issue was 924(c)(1)(A)'s prefatory phrase - "[e]xcept to the extent that a greater minimum sentence is otherwise provided by this section or by any other provision of law." The Third Circuit had held in Abbott that the defendant was subject to the mandatory consecutive sentence under 924(c)(1)(A) despite being sentenced to the 180-month mandatory minimum under ACCA, while the Fifth Circuit had held in Gould that the defendant could be sentenced to the mandatory consecutive sentence despite also being subject to a greater mandatory minimum for the underlying drug trafficking crime. In affirming these judgments, the Court stated that the "except" clause applies only where "another provision of law directed to conduct proscribed by §924(c) imposes an even greater mandatory minimum."
The Court also granted cert in two criminal cases, Fowler v. United States (No. 10-5443) and Tolentino v. New York (No. 09-11556). In Fowler, the Court has been asked to address what proof is needed to support a conviction for murdering someone to prevent the victim from reporting a federal crime to a federal law enforcement officer or judge (18 U.S.C. § 1512(a)(1)(c)). The Eleventh Circuit had rejected Fowler's contention that the federal nexus required by § 1512(a)(1)(C) necessitated proof that the victim would have likely communicated information relating to the possible commission of a federal offense to federal authorities.
In Tolentino the issue presented is whether an individual's motor vehicle records can be suppressed if the police had consulted those records only after making an illegal stop of the individual's vehicle. The police had stopped a car driven by Jose Tolentino, because they claimed he was playing his radio too loudly. They learned his identity as a result of the stop, and used that information to run a computer check of his motor vehicle records, which showed that his driver's license was suspended as well as prior violations. Tolentino moved to suppress the use of the records as evidence, arguing that they were the product of an unlawful police stop. That challenge was denied, and he pleaded guilty to driving without a license. New York's highest Court ruled that the "exclusionary rule" did not apply to the motor vehicle records, finding that an individual has no right to prevent the use of his mere identity as evidence.
November 2, 2010
Amendments to Guidelines Take Effect
The United States Sentencing Commission has published its 2010 Guidelines Manual. Effective November 1, 2010, several amendments to the sentencing guidelines and policy statements took effect. Key among these amendments are those that eliminate recency points in the criminal history calculation, expand the availability of alternatives to incarceration, create a downward departure for cultural assimilation, address the relevance of certain offender characteristics, and modify the Application Instructions of § 1B1.1 to set forth a "three-step process" for arriving at an "appropriate" sentence. See this Sentencing Resource Counsel Analysis for details of the amendments and practice pointers. In addition, the temporary emergency amendments implementing the Fair Sentencing Act (FSA) also took effect on November 1, although these amendments are published in a separate Supplement to the Federal Sentencing Guidelines Manual and Appendices (2010). For a summary of and practice pointers relating to these temporary amendments, see the Sentencing Resource Counsel FSA Analysis.
The Supplement and the Guidelines Manual together constitute the full Guidelines Manual and Appendices that will be in effect beginning November 1, 2010.
Supreme Court to Address Good Faith Exception to Exclusionary Rule; Miranda in Juvenile Context
On November 1 the Supreme Court granted certiorari in Davis v. United States (No. 09-11328) to decide "[w]hether the good-faith exception to the exclusionary rule applies to a search authorized by precedent at the time of the search that is subsequently ruled unconstitutional." The case involved a routine traffic stop of a car in which Davis was a passenger. During the stop, Davis apparently gave the police officer a false name. The officer asked Davis to step out of the car, and as he was getting out, Davis took off his jacket and placed it on the seat. The police officer arrested Davis, for giving a false name, and the driver of the car, handcuffed both of them, and placed them in separate patrol cars. The police then searched the car and found a gun in Davis's jacket pocket.
Under the Eleventh Circuit's precedent interpreting New York v. Belton, the search of the vehicle incident to the arrest was valid. Davis moved to suppress the gun based on the Supreme Court's cert grant in Arizona v. Gant, in which the Court ultimately held that "[p]olice may search a vehicle incident to a recent occupant's arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest." The Eleventh Circuit upheld the district court's denial of the motion to suppress and held that "suppressing evidence obtained from an unlawful search is inappropriate when the offending officer reasonably relied on well-settled precedent."
The Court also granted cert in J.D.B. v. North Carolina (No. 09-11121) to decide whether a juvenile questioned at school is entitled to Miranda warnings. The Supreme Court of North Carolina had held that a thirteen-year old special education student being questioned at school about a breaking and entering and larceny in a subdivision was not in custody and was not entitled to Miranda protections. The question presented is: "Whether a court may consider a juvenile's age in a Miranda custody analysis in evaluating the totality of the circumstances and determining whether a reasonable person in the juvenile's position would have felt he or she was not free to terminate police questioning and leave?"
In another case of interest to criminal defense practitioners, Turner v. Price (No. 10-10), the issue presented is whether an indigent defendant has a constitutional right to appointed counsel at a civil contempt proceeding that results in his incarceration. The Court will have to first determine whether it has jurisdiction to review the decision of the South Carolina Supreme Court.
October 18, 2010
Sentencing Commission Promulgates Temporary Emergency Amendment to Implement Fair Sentencing Act of 2010
On Friday, October 15, the Sentencing Commission promulgated a temporary emergency amendment, effective November 1, 2010, which implements the directives in the Fair Sentencing Act of 2010 (FSA). Notably, the temporary amendment keys the FSA's new mandatory minimum levels to base offense levels of 26 and 32, rather than the pre-amendment levels of 24 and 30.
The Commission also added to the guidelines a series of aggravating factors for all drug types. Enhancements include a 2-level increase if the defendant used, threatened or directed the use of violence; bribed or attempted to bribe a law enforcement officer; or maintained a premises to distribute or manufacture drugs. The amendment also includes a 2-level increase if "the defendant received an adjustment under 3B1.1 (Aggravating Role) and the offense involved 1 or more [super-aggravating] factors." For defendants with a minimal role in the offense, the amendment provides for a cap of 32 on the base offense level, and a 2-level reduction for such minimally involved defendants who have minimal knowledge of the offense, did not profit from it and were motivated by, among other things, fear or family pressure.
For additional analysis of the amendment as well as arguments in support of variances in a given case, see the Sentencing Resource Counsel Analysis and Defender Public Comment.
As the Commission stated in its press release, the temporary amendment "will expire no later than November 1, 2011. The Commission will consider a permanent amendment implementing the Fair Sentencing Act as part of its work during the coming year and will submit such amendment to Congress no later than May 1, 2011."
October 12, 2010
Supreme Court to Address Criminal Defendant's Standing to Raise Tenth Amendment Challenge; and Definition of "Cocaine Base" Under 21 U.S.C. § 841(b)(1)(A)
The Supreme Court today granted certiorari in two federal criminal cases, Bond v. United States (No. 09-1227) and DePierre v. United States (No. 09-1533).
In Bond, the Court will address whether a criminal defendant convicted under a federal statute has standing to challenge her conviction on grounds that, as applied to her, the statute is beyond the federal government's enumerated powers and inconsistent with the Tenth Amendment. The case arose out of an incident in which the petitioner tried to poison her husband's mistress by spreading toxic chemicals on the woman's car and mailbox. The petitioner was charged and convicted under 18 U.S.C. § 229(a), a criminal statute implementing the treaty obligations of the United States under the 1993 Chemical Weapons Convention. On appeal, the Third Circuit rejected petitioner's Tenth Amendment challenge to the statute, holding that, when the state and its officers are not party to the proceedings, a private party has no standing to raise a Tenth Amendment claim.
In DePierre, the Court will interpret 21 U.S.C. § 841(b)(1)(A), under which a ten-year mandatory minimum sentence is imposed upon persons who engage in a drug-related offense involving either (a) five kilograms or more of "coca leaves" or "cocaine," or (b) fifty grams (.05 kilograms) or more of those substances, or of a mixture of those substances, which contain "cocaine base." The question presented is whether the term "cocaine base" encompasses every form of cocaine that is classified chemically as a base or whether the term "cocaine base" is limited to "crack" cocaine.
September 28, 2010
Supreme Court Grants Cert in Five Criminal Cases
The Supreme Court today granted certiorari in three federal criminal cases and two state criminal cases.
In United States v. Tinklenberg (No. 09-1498) the Court will address whether the time between the filing of a pretrial motion and its disposition is automatically excluded from the deadline for commencing trial under the Speedy Trial Act of 1974, or is instead excluded only if the motion actually causes a postponement, or the expectation of a postponement, of the trial.
Freeman v. United States (No. 09-10245) addresses the retroactive application of the 2007 amendments to the crack cocaine guidelines, specifically, whether the defendant was properly precluded from relief under 18 U.S.C. § 3582(c) because his original sentence was imposed pursuant to a binding plea agreement.
In Sykes v. United States (No. 09-11311) the question presented is whether it is a "violent felony" justifying a longer sentence under the Armed Career Criminal Act for a suspect to use a vehicle to flee from police after being ordered to stop.
Kentucky v. King (No. 09-1272) raises the following issue: under what circumstances can lawful police action impermissibly "create" exigent circumstances that preclude warrantless entry?
Lastly, in Bullcoming v. New Mexico (No. 09-10876) the Court will address whether the Confrontation Clause was violated when the trial judge admitted the testimony of a crime lab supervisor to discuss a forensic test that the supervisor did not personally conduct or observe. The issue arises in a case involving a blood test as evidence in a drunk-driving case.
September 3, 2010
Sentencing Commission Issues Proposed Amendments Regarding the Fair Sentencing Act of 2010
The Sentencing Commission recently issued its proposed amendments implementing the statutory changes regarding crack cocaine offenses and directives regarding drug trafficking offenses generally set forth in the Fair Sentencing Act of 2010. The notice and comment period for the proposed amendments is 30 days, to accommodate the Act's mandate that the Commission promulgate temporary amendments by November 1, 2010.
August 4, 2010
President Obama Signs Historic Crack Reform Law
Yesterday, President Obama signed the Fair Sentencing Act of 2010, enacting sweeping reforms to federal crack cocaine laws, reducing sentences for crack cocaine offenses. The 100 to 1 sentencing ratio has been reduced to 18 to 1. Twenty-eight grams of crack cocaine will now trigger a five-year prison sentence and 280 grams of crack will trigger a ten-year sentence. The five-year mandatory minimum for simple possession of crack cocaine has also been eliminated. These reforms are not retroactive.
For details on the Fair Sentencing Act of 2010, including the issue of retroactivity, see the FAMM website and the Sentencing Law and Policy Blog.
July 22, 2010
Sentencing Commission Announces Proposed Priorities for 2011
The Sentencing Commission has issued notice and request for public comment on possible priority policy issues for the amendment cycle ending May 1, 2011. Tentative priorities include study of and/or reporting on: (1) sentencing practices post-Booker; (2) statutory mandatory minimum penalties; (3) arms trading violations including consideration of amendments to §2M5.2 or other guidelines in Parts K or M of Chapter Two as appropriate; (4) implementation of the directive in section 10606(a)(2)(A) of the Patient Protection and Affordable Care Act regarding health care fraud offenses; (5) cocaine sentencing policy, including consideration of amending the Drug Quantity Table in §2D1.1 across drug types; (6) child pornography offenses; (7) departures within the guidelines; (8) statutory and guideline definitions of "crime of violence", "aggravated felony", "violent felony", and "drug trafficking offense"; (9) possible amendment to provide a reduction in the offense level for certain deportable aliens who agree to a stipulated order of deportation; (10) the guidelines and policy statements pertaining to supervised release; (11) alternatives to incarceration; (12) resolution of circuit conflicts on interpretations of the guidelines; (13) guidelines pertaining to environmental crimes, with particular consideration of whether the fine provisions in Part C of Chapter Eight should apply to such offenses.
June 29, 2010
Supreme Court Holds Second Amendment Applicable to States; Grants Cert to Decide Whether Post-Sentencing Rehabilitation Can Be Used as a Sentencing Factor Under 18 U.S.C. § 3553(a)
Yesterday, the Court issued its long-awaited decision in McDonald v. Chicago (No. 08-1571), holding that the Second Amendment right recognized in Heller to keep and bear arms in self defense does apply to state and local governments. A sample of analyses of the McDonald opinion can be found at this post and this post on SCOTUSblog, and this Sentencing Law and Policy blog post.
In other news of interest to federal criminal defense practitioners, the Court granted cert in the sentencing case of Pepper v. United States (No. 09-6822). (See Brief in Opposition.) According to the docket sheet, the questions presented in the case are as follows:
Whether a federal district judge can consider a defendant's post-sentencing rehabilitation as a permissible factor supporting a sentencing variance under 18 U.S.C. § 3553(a) after Gall v. United States?
Whether as a sentencing consideration under 18 U.S.C. § 3553(a), post-sentencing rehabilitation should be treated the same as post-offense rehabilitation.
When a district court judge is removed from resentencing a defendant after remand, and a new judge is assigned, is the new judge obligated under the doctrine of the "law of the case" to follow sentencing findings issued by the original judge that had been previously affirmed on appeal?
For further comment on Pepper see this Sentencing Law and Policy blog post.
In addition to its actions yesterday, the Supreme Court today granted cert, reversed and remanded in a capital case, Sears v. Upton (No. 09–8854). According to an expert who testified during state post-conviction proceedings, Demarcus Sears has severe cognitive impairments. Although the state postconviction court found that Sears' trial counsel was constitutionally deficient for failing to bring to light Sears' cognitive impairments during the sentencing, the state postconviction court found itself unable to assess whether counsel's inadequate investigation might have prejudiced Sears. The Supreme Court found this conclusion unacceptable. In a per curiam opinion, the Court held that the state court "failed to apply the correct prejudice inquiry we have established for evaluating Sears' Sixth Amendment claim. We therefore grant the petition for writ of certiorari, vacate the judgment, and remand for further proceedings not inconsistent with this opinion."
June 24, 2010
Supreme Court Issues Opinions in "Honest Services" Fraud Cases
On June 24 the Supreme Court issued opinions in the three "honest services" fraud cases before it. In Skilling v. United States (No. 08 1394) the Court affirmed in part, reversed in part, and remanded, holding that the "honest services statute covers only bribery and kickback schemes and that pre trial publicity and community prejudice did not prevent Skilling from having a fair trial. In Black v. United States (No. 08 876), the Court held that its opinion in Skilling on the scope of the honest services law rendered the jury instructions in Black's case incorrect. In Weyhrauch v. United States (08 1196), the Court vacated and remanded under Skilling, in a one paragraph per curiam opinion.
For analysis of these opinions see this SCOTUSblog post.
In another opinion of interest to criminal defense practitioners, Magwood v. Patterson (No. 09 158), the Court held that when a criminal defendant succeeds in having his original sentence overturned, a later habeas petition challenging his new sentence should be treated as a first petition (not as a "second or successive" petition), even if it raises grounds that could have (but were not) made against the original sentence.
June 21, 2010
Supreme Court Issues Multiple Opinions, Including Dillon Crack Cocaine Retroactivity Ruling
On June 17 and again on June 21 the Supreme Court issued opinions in several cases of interest to federal criminal defense practitioners.
In Dillon v. United States (No. 09-6338), issued on June 17, the Court affirmed the judgment of the Third Circuit, holding that Booker does not apply to sentencing modifications under 18 U.S.C. § 3582(c)(2).
Percy Dillon had moved for a sentence reduction after the crack cocaine guidelines were amended, arguing both for the two-level reduction set forth in the amended guidelines as well as a sentence below the amended guideline range based on application of the 3553(a) factors. The Third Circuit held that Booker did not apply to section 3582 sentencing modifications; instead, the court treated the amended guideline range as mandatory and held that the defendant was only eligible for the two-level reduction.
In affirming the Third Circuit's judgment, the Supreme Court (in a 7-1 decision written by Justice Sotomayor) first determined that "Section 3582(c)(2)'s text, together with its narrow scope, shows that Congress intended to authorize only a limited adjustment to an otherwise final sentence and not a plenary resentencing proceeding." Based on this determination, "we conclude that proceedings under that section do not implicate the interests identified in Booker." For further analysis of Dillon see this SCOTUSblog post.
In another decision issued on June 17, City of Ontario, et al., v. Quon, et al.(No. 08-1332), the Court held that the search of a police officer's text messages to his colleagues and to a woman with whom he was having an affair was reasonable, and therefore the officer's Fourth Amendment rights were not violated. For more on Quon see this SCOTUSblog post.
On June 21 the Court issued an opinion in Holder v. Humanitarian Law Project (No. 08-1498; 09-89), affirming in part, reversing in part, and remanding on a 6-3 vote. The Court held that the federal material-support statute is constitutional as applied to the particular kinds of support that the parties in this case seek to provide to foreign terrorist organizations. The Court concludes that, as applied to these individuals and groups, the statute does not violate the free speech clause of the First Amendment. For more on the opinion see this SCOTUSblog post.
Also on June 21, the Court granted cert in Walker v. Martin (No. 09-996), to address whether, in federal habeas corpus proceedings, a state law under which a prisoner may be barred from collaterally attacking his conviction when the prisoner "substantially delayed" filing his habeas petition is "inadequate" to support a procedural bar because (1) the federal court believes that the rule is vague and (2) the state failed to prove that its courts "consistently" exercised their discretion when applying the rule in other cases.
June 16, 2010
Supreme Court Issues Opinions Addressing Mandatory Restitution for Crime Victims, Equitable Tolling of AEDPA, and Aggravated Felonies Under Immigration Law; Grants Cert in Habeas Case
On June 14th the Court issued opinions in three cases and granted cert in one case of interest to federal criminal defense practitioners. In Dolan v. United States (No. 09-367), the Court held: "a sentencing court that misses the 90-day deadline [as set forth in18 U. S. C. §3664(d)(5)] nonetheless retains the power to order restitution — at least where, as here, the sentencing court made clear prior to the deadline's expiration that it would order restitution, leaving open (for more than 90 days) only the amount."
Petitioner Brian Dolan plead guilty to federal assault charges stemming from a fight on an Indian reservation. Although the probation office and the government's victim advocate raised the prospect of having Dolan pay restitution for injuries sustained by the victim, information regarding the scope of restitution was not available before Dolan was to be sentenced. On the date of Dolan's sentencing, the district court therefore sentenced Dolan to twenty-one months in prison, but left "the question of restitution open-ended because we don't have a good number at this point."
A complete accounting of the victim's medical bills was not submitted until sixty-seven days after Dolan was sentenced. The district court did not order restitution until ninety-two days after expiration of Section 3664(d)(5)'s ninety-day window. In an appeal to the Tenth Circuit, Dolan challenged the district court's authority to enter the award after the ninety-day window had passed, but the court of appeals affirmed the district court's restitution award.
The statute in question provides that "the court shall set a date for the final determination of the victim's losses, not to exceed 90 days after sentencing." 18 U. S. C. §3664(d)(5). In affirming the Tenth Circuit's judgment, the Supreme Court reviewed its handling of similar questions in the past, and determined that the deadline in the instant case fell within the category of a deadline that "seeks speed by creating a time-related directive that is legally enforceable but does not deprive a judge or other public official of the power to take the action to which the deadline applies if the deadline is missed." Under this particular type of limitation, the Court concluded, "[t]he fact that a sentencing court misses the statute's 90-day deadline, even through its own fault or that of the Government, does not deprive the court of the power to order restitution."
In Holland v. Florida (No. 09-5327) the Court held that Section 2244(d) of AEDPA, which requires state prisoners to file their federal habeas petitions within one year after their direct appeals become final, is subject to equitable tolling. For further analysis of the opinion see SCOTUSblog.
The Court's opinion in Carachuri-Rosendo v. Holder (No. 09-60) bears on the immigration consequences of conviction. There, the Court held that second or subsequent crimes of possession of drugs are not aggravated felonies under federal immigration law when the underlying state conviction is not based on the fact that there was a prior conviction.
Lastly, the Court granted cert in Cullen v. Pinholster (No. 09-1088), in which it will decide the following issues: (1) whether it is appropriate under § 2254 for a federal court to conclude that a state court's rejection of a claim was unreasonable in light of facts that an applicant could have but never alleged in state court; and (2) what standard of review is applicable to claims of ineffective assistance of counsel.
June 7, 2010
Supreme Court Holds That Bureau of Prisons Has Been Correctly Calculating Good Time Credits on Federal Criminal Sentences
On June 7 the Court issued its opinion in Barber v. Thomas (No. 09-5201), in which it held that the calculation method used by the Bureau of Prisons to determine the amount of "good time" earned on federal criminal sentences is lawful. The case involved the interpretation of 18 U.S.C. § 3624(b)(1), which states:
[A] prisoner who is serving a term of imprisonment of more than 1 year other than a term of imprisonment for the duration of the prisoner's life, may receive credit toward the service of the prisoner's sentence, beyond the time served, of up to 54 days at the end of each year of the prisoner's term of imprisonment, beginning at the end of the first year of the term, subject to determination by the Bureau of Prisons that, during that year, the prisoner has displayed exemplary compliance with institutional disciplinary regulations. ...[C]redit for the last year or portion of a year of the term of imprisonment shall be prorated and credited within the last six weeks of the sentence.
The BOP's method, which the Court upheld, interprets "term of imprisonment" in the statute to mean entire imposed sentence" in some places, but "time actually served" when calculating good time. The BOP sets earned time aside at the end of each 365-day period. When the time remaining in a sentence minus earned time equals less than one year, the BOP applies a 54/365 ratio to prorate that last year and determine the prisoner's release date.
June 3, 2010
Case Compensation Maximums for CJA Service Providers Increase as of May 27, 2010
On May 27, 2010, an amendment to the Criminal Justice Act, 18 U.S.C. § 3006A, raised the waivable case compensation maximum amounts applicable to providers of investigative, expert, and other services. It also provides a formula for increasing these threshold amounts in future years to account for the effects of employment costs without the need for further legislation. Effective May 27, 2010, the case compensation maximum amount of $500, which applies absent prior judicial authorization, was raised to $800. The case compensation maximum amount of $1,600, which applies in non-capital cases where there has been prior authorization, is raised to $2,400. View the AO Memorandum for details of the increase.
June 1, 2010
Supreme Court Holds That Failure to Register Under SORNA Applies Only to Post-Enactment Travel; Further Curtails Miranda Right to Remain Silent
In Carr v. United States (No. 08-1301), the Court held that the Sex Offender Registration and Notification Act (SORNA) does not apply to sex offenders whose interstate travel occurred before the Act went into effect.
Among its provisions, SORNA established a federal criminal offense covering, inter alia, any person who (1) "is required to register under [SORNA]," (2) "travels in interstate or foreign commerce," and (3) "knowingly fails to register or update a registration." 18 U. S. C. §2250(a). At issue in Carr was whether §2250 applies to sex offenders whose interstate travel occurred prior to SORNA's effective date and, if so, whether the statute violates the Constitution's prohibition on ex post facto laws. Because the court held that the statute itself cannot be interpreted to cover pre-SORNA travel, the Court did not reach the ex post facto question.
In Berghuis v. Thompkins (08-1470), the Court upheld the state court decision rejecting the claim of a violation of Miranda v. Arizona. Thompkins' silence while being questioned by police did not amount to an invocation of his Miranda right to remain silent.
At the beginning of Thompkins' interrogation, one of the detectives presented him with a Miranda "Notification of Constitutional Rights and Statement" form. The detective read four of the five statements on the form aloud, and asked Thompkins to read the fifth aloud. Thompkins declined to sign the form, and there was conflicting evidence regarding whether Thompkins verbally confirmed that he understood the rights listed. Officers then began the interrogation. At no point during the interrogation did Thompkins expressly say that he wanted to remain silent, that he did not want to talk with the police, or that he wanted an attorney. However, Thompkins was largely silent during the interrogation, which lasted about three hours, occasionally providing a few short responses such as "yeah," "no," or "I don't know." About 2 hours and 45 minutes into the interrogation, one of the detectives asked Thompkins several questions about his belief in God, culminating in, "Do you pray to God to forgive you for shooting that boy down?" Thompkins answered "Yes" and looked away. Thompkins refused to make a written confession, and the interrogation ended about 15 minutes later.
Thompkins was charged with first-degree murder and other offenses. He moved to suppress the statements made during the interrogation, arguing that he had invoked his Fifth Amendment right to remain silent, requiring police to end the interrogation at once, that he had not waived his right to remain silent, and that his inculpatory statements were involuntary. The trial court denied the motion. The Michigan state courts affirmed the conviction; in habeas proceedings the Sixth Circuit granted Thompkins' petition.
In reversing the Sixth Circuit, the Supreme Court first held that a defendant's invocation of the right to remain silent must be "unambiguous." Because Thompkins never actually said that he did not want to talk to the police, the Court concluded that his assertion of the right to silence was ambiguous. The Court next determined that Thompkins had knowingly and voluntarily waived his right to silence. Here, the Court reasoned, a valid waiver could be implied by the circumstances: "Where the prosecution shows that a Miranda warning was given and that it was understood by the accused, an accused's uncoerced statement establishes an implied waiver of the right to remain silent." According to the Court, "The fact that Thompkins made a statement about three hours after receiving a Miranda warning does not overcome the fact that he engaged in a course of conduct indicating waiver. Police are not required to rewarn suspects from time to time." Lastly, the Court rejected the argument that the police were required to obtain a waiver of Thompkins's Miranda rights before commencing the interrogation.
May 24, 2010
Supreme Court Holds That Machinegun Clause of 18 U.S.C. § 924(c) Is an Element of the Offense; Addresses Plain Error Standard of Review
The Supreme Court today issued opinions in two federal criminal cases.
In United States v. O'Brien, et al. (08-1569) the Court held that in a prosecution under 18 U.S.C. §924(c) the fact that a firearm was a machinegun is an element to be proved to the jury beyond a reasonable doubt, and is not a sentencing factor to be proved to the judge at the time of sentencing.
Section 924(c) prohibits the use or carrying of a firearm in relation to a crime of violence or drug trafficking crime, or the possession of a firearm in furtherance of such crimes. §924(c)(1)(A). A violation of the statute carries a mandatory minimum term of five years' imprisonment, §924(c)(1)(A)(i); but if the firearm is a machinegun, the statute requires a 30-year mandatory minimum sentence, §924(c)(1)(B)(ii).
In reaching its conclusion, the Court detailed its previous opinion regarding section 924(c), Castillo v. United States, 530 U. S. 120 (2000), in which it had determined that the machinegun provision under the pre-amendment version of the statue was an element of the offense. Applying the factors in Castillo, the Court rejected the government's contention that the 1998 amendments to section 924(c) transformed the machinegun provision into a sentencing factor.
In United States v. Marcus (No. 08-1341) the Court rejected the Second Circuit's interpretation of the "plain error" standard of review (see Fed. Rule Crim. Proc. 52(b)).
Marcus was indicted on charges that he engaged in unlawful forced labor and sex trafficking between January 1999 and October 2001. At trial, the Government presented evidence of his conduct during that entire period and a jury found him guilty of both charges.
On appeal Marcus pointed out for the first time that the statutes he violated were enacted as part of the Trafficking Victims Protection Act of 2000, which did not become law until October 28, 2000. Marcus noted that the indictment and the evidence presented at trial permitted a jury to convict him exclusively upon the basis of actions that he took before October 28, 2000 and that therefore his conviction violated the Ex Post Facto Clause. While Marcus conceded that he had not objected on these grounds in the District Court, he asserted that the constitutional error was "plain," and his conviction therefore must be set aside.
The Second Circuit held, "'even in the case of a continuing offense, if it was possible for the jury-wh[ich] had not been given instructions regarding the date of enactment-to convict exclusively on [the basis of] pre-enactment conduct, then the conviction constitutes a violation'" of the Ex Post Facto Clause. The court noted that this was "'true even under plain error review.'" According to the Second Circuit, "'a retrial is necessary whenever there is any possibility, no matter how unlikely, that the jury could have convicted based exclusively on pre-enactment conduct.'"
In rejecting this formulation of the standard, the Supreme Court stated: "The cases that set forth our interpretation hold that an appellate court may, in its discretion, correct an error not raised at trial only where the appellant demonstrates that (1) there is an "'error'"; (2) the error is "'clear or obvious, rather than subject to reasonable dispute'"; (3) the error "'affected the appellant's substantial rights, which in the ordinary case means'" it "'affected the outcome of the district court proceedings'"; and (4) "'the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.'" According to the Court, the Second Circuit's standard "is inconsistent with the third and the fourth criteria set forth in these cases."
May 17, 2010
Supreme Court Acts in Key Cases: Eighth Amendment Is Violated When a Juvenile Is Sentenced to Life Without Parole in a Case Not Involving Homicide; Civil Commitment of "Sexually Dangerous Persons" Does Not Violate "Necessary and Proper" Clause
The Supreme Court today issued two opinions, and ordered one grant of certiorari, in cases of particular interest to criminal defense practitioners.
In Graham v. Florida (No. (08-7412), the Court held that the Eighth Amendment prohibits a sentence of life without the possibility of parole for juveniles convicted of offenses other than homicide. For the first time, the Court extended the framework for a categorical challenge under the Eighth Amendment to a sentence to a term of years (as opposed to death). In addition to its explicit holding, the opinion is a source of useful mitigation arguments generally. For example, the Court upheld its findings in Roper that juveniles are less culpable than adult offenders as shown by "developments in psychology and brain science [that] continue to show fundamental differences between juvenile and adult minds." The Court extends its reasoning in Roper, noting that people who do not kill or intend to kill also have relatively diminished culpability. In addition, according to the Court, life without parole sentences "share some characteristics with death sentences that are shared by no other sentences," including the fact that it is "a forfeiture that is irrevocable" and "deprives the convict of the most basic liberties without giving hope of restoration, except perhaps by executive clemency - the remote possibility of which does not mitigate the harshness of the sentence." The Court also engaged in a useful analysis of the four purposes of sentencing.
The Court dismissed as improvidently granted the other juvenile sentencing case pending before it, Sullivan v. Florida (No.08-7621).
In United States v. Comstock (No. 08-1224), the Court upheld the power of the federal government to civilly commit "sexually dangerous persons" (18 U.S.C. § 4248) under the Necessary and Proper Clause of the Constitution. First, the Court found that the Clause constitutes a "broad" delegation of legislative authority and requires only that a statute be rationally related to the implementation of a constitutionally enumerated power, as shown by the explosion in federal criminal laws and the federal penal system. Second, according to the Court, § 4248 represents "a modest addition to a set of prison-related mental-health statutes that have existed for many decades." Third, the Court found that it was reasonable of Congress to extend its "longstanding civil-commitment system to cover mentally ill and sexually dangerous persons who are already in federal custody, even if doing so detains them beyond the termination of their federal sentence." Fourth, the Court reasoned that the statute properly accounts for states' interests. Fifth, the Court found that the link between § 4248 and Article I is "not too attenuated" because what is "necessary and proper" can be based on a series of inferences, and is not "too sweeping" because few people have been subjected to it.
Practitioners should keep in mind that the Court did not reach whether "other provisions of the Constitution - such as the Due Process Clause - prohibit civil commitment" under the circumstances provided for in 18 U.S.C. § 4248: "We do not reach or decide any claim that the statute or its application denies equal protection of the laws, procedural or substantive due process, or any other rights guaranteed by the Constitution."
In Wall v. Koli (No.09-868), the Court granted certiorari to decide whether a state court sentence-reduction motion consisting of a plea for leniency constitutes an "application for State post-conviction or other collateral review," 28 U.S.C. § 2244(d)(2), thus tolling AEDPA's one-year limitations period for a state prisoner to file a federal habeas corpus petition.
May 4, 2010
Supreme Court Rules on Double Jeopardy Clause Claim in Habeas Case
On May 3 the Court issued an opinion in Renico v. Lett (No. 09-338), holding that habeas relief was improper where the Michigan Supreme Court's rejection of Lett's double jeopardy claim did not constitute an unreasonable application of clearly established Federal law, as required by AEDPA.
Reginald Lett was tried in Michigan state court on charges of first-degree murder and possession of a firearm during a felony. During the course of deliberations, the jury sent several notes to the judge one of which asked what would happen if the jurors could not agree on a verdict. As a result of this note, the judge questioned the foreperson on whether the jury was deadlocked. Concluding that the jury was deadlocked after an arguably ambiguous exchange, the judge declared a mistrial. On retrial, Lett was convicted.
Lett appealed his conviction to the Michigan Court of Appeals, arguing that the judge in his first trial had announced a mistrial without any manifest necessity for doing so. Because the mistrial was an error, Lett maintained, the State was barred by the Double Jeopardy Clause from trying him a second time. The Michigan Court of Appeals agreed with Lett and reversed his conviction. The state appealed and the Michigan Supreme Court reversed the judgement of the Court of Appeals, holding that the trial court did not abuse its discretion in declaring a mistrial. Lett successfully raised the double jeopardy issue in federal habeas proceedings.
In reversing the Sixth Circuit's grant of the writ, the Supreme Court reasoned, "The Michigan Supreme Court's adjudication involved a straightforward application of our longstanding precedents to the facts of Lett's case. The court cited our own double jeopardy cases-from Perez to Washington- elaborating upon the 'manifest necessity' standard for granting a mistrial and noting the broad deference that appellate courts must give trial judges in deciding whether that standard has been met in any given case. . . It then applied those precedents to the particular facts before it and found no abuse of discretion . . . ." The Court concluded, "the Michigan Court's decision upholding the trial judge's exercise of discretion-while not necessarily correct-was not objectively unreasonable."
April 26, 2010
Sentencing Commission Votes to Promulgate Amendments to Sentencing Guidelines
Earlier this month the U.S. Sentencing Commission voted to promulgate amendments to the Federal Sentencing Guidelines. Key among these amendments are those that eliminate recency points in the criminal history calculation, expand the availability of alternatives to incarceration, and address the relevance of certain offender characteristics. The Commission will submit all promulgated amendments to Congress next month. Absent Congressional action, the amendments will take effect on November 1, 2010. For more information on key amendments, and how they can be used even prior to November 2010 to advocate for better sentences, see the Analysis by the National Sentencing Resource Counsel Project. For a summary of all promulgated amendments, see the USSC Press Release (4/19/10). See Amendments to the Sentencing Guidelines for the final text of all amendments. See below for a redlined version of each amendment.
Alternatives to Incarceration
Specific Offender Characteristics
April 20, 2010
Supreme Court Strikes Down As Substantially Overbroad The Federal Law Criminalizing Depictions of Animal Cruelty
In an 8-1 decision issued today the Supreme Court held, in United States v. Stevens (08-769), that 18 U. S. C. §48 violates the Free Speech Clause of the First Amendment.
Apparently in response to the production and distribution of "crush" videos, Congress enacted 18 U. S. C. §48 to criminalize the commercial creation, sale, or possession of certain depictions of animal cruelty. Section 48 establishes a criminal penalty of up to five years in prison for anyone who knowingly "creates, sells, or possesses a depiction of animal cruelty," if done "for commercial gain" in interstate or foreign commerce. §48(a). A depiction of "animal cruelty" is defined as one "in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed," if that conduct violates federal or state law where "the creation, sale, or possession takes place." §48(c)(1). In its "exceptions clause," the law exempts from prohibition any depiction "that has serious religious, political, scientific, educational, journalistic, historical, or artistic value." §48(b).
Respondent Robert J. Stevens ran a business,"Dogs of Velvet and Steel," and an associated Web site, through which he sold videos of pit bulls engaging in dogfights and attacking other animals. On the basis of these videos, Stevens was indicted on three counts of violating §48.
In reaching its holding the Court first dismissed the Government's attempt to categorically exclude from First Amendment protections the sort of speech prohibited by the statute. According to the Government, "'Whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs.'" Writing for the Court, Chief Justice Roberts stated, "As a free-floating test for First Amendment coverage, that sentence is startling and dangerous. The First Amendment's guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs." Nor was the Court convinced by a comparison with child pornography. Unlike the depictions at issue here, "The market for child pornography [is] 'intrinsically related' to the underlying abuse, and is therefore 'an integral part of the production of such materials, an activity illegal throughout the Nation.'"
The Court then addressed the type of facial challenge under the First Amendment whereby a law may be invalidated as overbroad if "'a substantial number of its applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep.'" The Court discussed several reasons why the statute at issue could not withstand such a challenge. First, "the text of the statute's ban on a 'depiction of animal cruelty' nowhere requires that the depicted conduct be cruel. That text applies to 'any . . . depiction' in which 'a living animal is intentionally maimed, mutilated, tortured, wounded, or killed.' §48(c)(1). '[M]aimed, mutilated, [and] tortured' convey cruelty, but 'wounded' or 'killed' do not suggest any such limitation." Second, although the statute requires that the conduct be illegal, the Court found that this requirement did not sufficiently limit the statute's breadth, since some laws (such as the Endangered Species Act) prohibit even the humane killing of certain animals. Additionally, "Both views about cruelty to animals and regulations having no connection to cruelty vary widely from place to place."
Third, the Court rejected the Government's argument that the statute's "exceptions clause" sufficiently limits its application, both because the exceptions clause excludes only those depictions that have "serious" societal value, and because much speech (such as hunting videos) does not fall within any of the clause's enumerated categories.
Lastly, the Court took a hatchet to the Government's claim that prosecutorial restraint cures the constitutional defect by limiting prosecutions to those involving extreme cruelty: "The First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige. We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly."
March 31, 2010
Supreme Court Holds That Attorneys Have a Constitutional Obligation to Advise Clients of Deportation Risk
The Supreme Court today issued an opinion in Padilla v. Commonwealth of Kentucky (08-861), holding that the Sixth Amendment right to effective assistance of counsel encompasses advice regarding the risk of deportation as a consequence of a criminal conviction.
Jose Padilla, a native of Honduras and lawful permanent resident of U.S., entered a guilty plea to charges of drug distribution. As a result, he now faces deportation. Padilla claimed in a postconviction proceeding that his counsel not only failed to advise him of the deportation consequence prior to his entering the plea, but also told him that he "'did not have to worry about immigration status since he had been in the country so long.'" Padilla claimed that he relied on his counsel's erroneous advice when he pleaded guilty to the drug charges and that he would have insisted on going to trial if he had not received incorrect advice from his attorney.
Writing for the majority, Justice Stevens stated, "We agree with Padilla that constitutionally competent counsel would have advised him that his conviction for drug distribution made him subject to automatic deportation. Whether he is entitled to relief depends on whether he has been prejudiced, a matter that we do not address." In so concluding, the Court cited the changes in the "landscape of federal immigration law" that have "have dramatically raised the stakes of a noncitizen's criminal conviction." According to the Court, "These changes confirm our view that, as a matter of federal law, deportation is an integral part — indeed, sometimes the most important part — of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes."
Attempting to delineate the contours of an attorney's duty to advise of the risk of deportation, the Court stated, "Immigration law can be complex, and it is a legal specialty of its own. Some members of the bar who represent clients facing criminal charges, in either state or federal court or both, may not be well versed in it. There will, therefore, undoubtedly be numerous situations in which the deportation consequences of a particular plea are unclear or uncertain. The duty of the private practitioner in such cases is more limited. When the law is not succinct and straightforward . . . a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences. But when the deportation consequence is truly clear, as it was in this case, the duty to give correct advice is equally clear."
March 30, 2010
Supreme Court Issues Opinion in Habeas Case Raising Fair-Cross-Section Claim; Grants Certiorari in Two Cases of Interest to Criminal Defense Practitioners
Earlier today, the Court issued a unanimous opinion in Berghuis v. Smith (08-1402), reversing the judgment of the Sixth Circuit and remanding for further proceedings. The Court found no violation of the habeas petitioner's Sixth Amendment right to be tried by an impartial jury drawn from sources reflecting a fair cross section of the community.
Respondent Diapolis Smith, an African-American, was convicted of second-degree murder by an all-white jury in Kent County, Michigan in 1993. At the time of Smith's trial, African-Americans constituted 7.28% of Kent County's jury-eligible population, and 6% of the pool from which potential jurors were drawn. The Court held that Smith failed to establish a prima facie violation of the fair-cross-section requirement as set forth in the Court's Duren decision, i.e., that: (1) a group qualifying as "distinctive" (2) is not fairly and reasonably represented in jury venires, and (3) "systematic exclusion" in the jury-selection process accounts for the underrepresentation. Smith claimed "systematic exclusion" based on Kent County's prospective-juror-assignment procedure, under which Kent County assigned prospective jurors first to local district courts, and, only after filling local needs, made remaining persons available to the county-wide Circuit Court, which heard felony cases like Smith's. The Michigan Supreme Court, however, had rejected Smith's argument for lack of proof that the assignment procedure caused underrepresentation. According to Justice Ginsburg, "As [the Michigan Supreme Court's] determination was not at all unreasonable, the Sixth Circuit had no warrant to disturb it." The Court also rejected Smith's attempt to "make out a prima facie case by pointing to a host of [other] factors that, individually or in combination, might contribute to a group's underrepresentation.
In addition to issuing the above opinion, the Court also recently granted certiorari in two cases of interest to criminal defense practitioners. The habeas case Belleque v. Moore (09-658) presents the following questions: (1) The Supreme Court established in Hill v. Lockhart the standard for assessing, in a collateral challenge to a conviction that was based on a guilty or no-contest plea, whether an attorney's deficient performance requires reversal of a conviction. In Arizona v. Fulminante – a direct appellate review case – the Court reviewed all the evidence presented at trial and held that the erroneous admission of a coerced confession at the trial was not harmless. If a collateral challenge is based on a defense attorney's decision not to move to suppress a confession prior to a guilty or no contest plea, does the Fulminante standard apply, even though no record of a trial is available for review? Even if the Fulminante standard applies in that context, is it "clearly established Federal law" for purposes of 28 U.S.C. § 2254(d)(1)? (2) In Moore's underlying criminal case, he confessed to police that he personally shot the victim. He also confessed to two other people, and he ultimately pleaded no contest to murder. In his collateral challenge to his conviction, he alleged that his attorney should have moved to suppress the confession to police, but he offered no evidence that he would have insisted on going to trial had counsel done so. Did the Ninth Circuit err by granting federal habeas relief on Moore's ineffective-assistance-of-counsel claim?
In Flores-Villar v. United States (09-5801) the Court will address the issue of derivative citizenship in an illegal re-entry case. The question presented is whether the Court's decision in Nguyen v. Immigration and Naturalization Service permits gender discrimination that has no biological basis.
Flores-Villar was arrested by border patrol in San Diego as he was waiting for a bus. Although Flores-Villar was born in Tijuana, Mexico, his father, Ruben Trinidad Flores-Villar, is a United States citizen and has been since birth. Flores-Villar grew up in the San Diego area with his father and his paternal grandmother and attended San Diego area schools. Despite these and numerous additional facts, the district judge granted the government's motion in limine, preventing Flores-Villar from proving derivative citizenship as a defense to his illegal re-entry charge. Flores-Villar objected to the district court's ruling, arguing that sections 1401(a)(7) and 1409 of the Immigration and Nationality Act violated the guarantee of Equal Protection contained in the Due Process Clause of the Fifth Amendment because they imposed substantial residence burdens on the fathers of out-of-wedlock children born abroad as prerequisites to passing U.S. citizenship to the child while at the same time imposing only a minimal burden on similarly situated women. The prerequisites for men were so severe that it was impossible for Flores-Villar's father to qualify, yet he would be a citizen if his mother, not his father, had been a U.S. citizen.
March 18, 2010
Senate Unanimously Passes Crack Sentencing Reform Bill
On March 17, 2010, the full Senate approved a bill, S. 1789, that would reduce the sentencing disparity between federal crack and powder cocaine offenses. The bill adopts an 18:1 ratio amount of powder cocaine versus crack cocaine triggering the same sentence. As a result, 28 grams of crack cocaine will trigger a 5-year mandatory minimum prison sentence and 280 grams of crack will trigger a 10-year mandatory minimum prison sentence. The bill also would eliminate the mandatory minimum sentence for simple possession of crack. Additionally, the legislation would direct the U.S. Sentencing Commission to enhance penalties for aggravating factors like violence or bribery of a law enforcement officer. The legislation would not apply retroactively. The bill now goes to the House of Representatives. For further analysis see the Sentencing Law and Policy blog and the FAMM website.
March 8, 2010
Supreme Court's Speedy Trial Opinion Limits Automatic Exclusion of Time Granted for Prep of Pretrial Motions
The Speedy Trial Act, 18 U.S.C. § 3161, et seq., requires that a criminal defendant be tried within 70 days of indictment or the defendant's first appearance in court, whichever is later. In calculating the 70-day period, 18 U.S.C. § 3161(h)(1) automatically excludes "delay resulting from other proceedings concerning the defendant, including but not limited to . . . (D) delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion." In Bloate v. United States (08-728) the Supreme Court held that the time granted to prepare pretrial motions is not automatically excludable from the 70-day limit under subsection (h)(1). Instead, such time may be excluded only when a district court grants a continuance based on appropriate findings under subsection (h)(7). Subsection (h)(7) provides that delays "resulting from a continuance granted by any judge" may be excluded, but only if the judge finds that "the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial" and records those findings.
March 2, 2010
Supreme Court Rules That Battery By Offensive Touching Is Not An ACCA Predicate; Grants Certiorari to Address Confrontation Clause Issue
Earlier today, the Court issued an opinion in Johnson v. United States (08-6925), holding that the Florida felony offense of battery by "[a]ctually and intentionally touch[ing]" another person does not have as an element the use of physical force against the person of another, and therefore does not constitute a "violent felony" under the Armed Career Criminal Act, 18 U.S.C. §924(e)(1).
At issue was Johnson's 2003 conviction for simple battery under Florida law, which ordinarily is a first-degree misdemeanor, but is a third-degree felony for a defendant who (like Johnson) had been convicted of any battery before. Under the Florida statute, a battery occurs when a person either "1. [a]ctually and intentionally touches or strikes another person against the will of the other," or "2. [i]ntentionally causes bodily harm to another person." As interpreted by Florida courts, the statute allows the prosecution to prove a battery in one of three ways: by proving that the defendant "[i]ntentionally caus[ed] bodily harm;" that he "intentionally str[uck]" the victim; or that he merely "[a]ctually and intentionally touche[d]" the victim.
The Court stated that since nothing in the record of Johnson's 2003 battery conviction permitted the District Court to conclude that it rested upon anything more than the least of these acts (as per Shepard v. United States, 544 U. S. 13, 26 (2005)) his conviction was an ACCA predicate for a "violent felony" only if "[a]ctually and intentionally touch[ing]" another person constitutes the use of "physical force" within the meaning of 18 U.S.C. §924(e)(2)(B)(I). In concluding that it does not, the Court reasoned, "We think it clear that in the context of a statutory definition of ‘violent felony,' the phrase ‘physical force' means violent force—that is, force capable of causing physical pain or injury to another person."
In addition to issuing the Johnson opinion, on March 1 the Court granted certiorari in Michigan v. Bryant (09-150) to determine whether the defendant's right to confront a witness was violated. Specifically, the question presented in the case is: Whether preliminary inquiries of a wounded citizen concerning the perpetrator and circumstances of the shooting are nontestimonial because they were "made under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency," including not only aid to a wounded victim, but also the prompt identification and apprehension of an apparently violent and dangerous individual?
February 24, 2010
Supreme Court Issues Two Decisions Regarding Suppression of Statements
Earlier today, the Court issued an opinion in Maryland v. Shatzer (08-680), holding that a "break in custody" permits the police to resume questioning a suspect who had previously asked for a lawyer.
Shatzer had been in prison when he was initially questioned. He was returned to the general prison population after he invoked the right to counsel. Two and a half years later police reinitiated interrogation, and Shatzer waived his Miranda rights. Maryland courts suppressed the confession, but the Supreme Court reversed, reasoning that the break in custody created an exception to the rule articulated in Edwards v. Arizona (1981), which bars police from initiating questioning with criminal suspects who have invoked their right to counsel. The Court also created an arbitrary period of 14 days in which the Edwards prophylactic rule expires after a break in custody.
On February 23 the Court issued a decision in Florida v. Powell (08-1175), in which it addressed whether advice that a suspect has "the right to talk to a lawyer before answering any of [the law enforcement officers']questions," and that he can invoke this right "at any time. . . during th[e] interview," satisfied Miranda.
At issue were the warnings provided in the Tampa Police Department Consent and Release Form 310, which states: "You have the right to remain silent. If you give up the right to remain silent, anything you say can be used against you in court. You have the right to talk to a lawyer before answering any of our questions. If you cannot afford to hire a lawyer, one will be appointed for you without cost and before any questioning. You have the right to use any of these rights atany time you want during this interview." According to the Court, these warnings met Miranda's requirement that an individual must be "clearly informed," prior to custodial questioning, that he has, among other rights, "the right to consult with a lawyer and to have the lawyer with him during interrogation."
February 22, 2010
Supreme Court Grants Certiorari in Habeas Case to Address AEDPA Deference and Effectiveness of Counsel Questions; Issues Summary Disposition in Case Raising Batson Claim
The Supreme Court today granted certiorari in Harrington v. Richter (09-587), in which it will address two questions: (1) Whether the Ninth Circuit improperly granted habeas corpus relief to a state prisoner by finding that the Sixth Amendment right to effective counsel is violated when counsel does not investigate or present available forensic evidence supporting the theory of defense he uses during trial and instead relies on cross-examination and other methods designed to create reasonable doubt about the defendant's guilt; and (2) Whether AEDPA deference applies to a state court's summary disposition of a claim, including a claim under Strickland v. Washington.
In addition, the Court issued a summary disposition in Thaler v. Haynes (09-273), reversing and remanding the judgment of the Fifth Circuit. The Court ruled, in an unsigned opinion, that a trial judge who is called upon to evaluate a Batson claim need not have personally observed a potential juror's behavior in deciding later whether that juror was denied a seat on the panel because of race, despite the prosecutor's claim that she was excluded because of her demeanor under questioning.
January 26, 2010
Supreme Court Grants Certiorari to Clarify the Application of Mandatory Minimums Under 18 U.S.C. § 924(c)(I)(A); Declines to Further Define Confrontation Rights in Context of Drug Labs
On January 25 the Supreme Court granted cert in two cases, consolidated for oral argument, Abbott v. United States (09-479), and Gould v. United States (09-7073). Both cases ask for clarification of the "except" clause in 18 U.S.C. § 924(c)(I)(A), which provides: "Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law, (emphasis added) any person who, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime that provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime . . ." be subject to certain specified mandatory minimum sentences.
The issues presented in Abbott are: (1) whether the term "any other provision of law" of 18 U.S.C. 924(c) includes the underlying drug trafficking offense or crime of violence; and (2) if not, whether it includes another offense for possessing the same firearm in the same transaction. In Gould, the issue is whether a mandatory minimum sentence provided by 18 U.S.C. § 924(c)(I)(A) applies to a count when another count already carries a greater mandatory minimum sentence.
In Abbott, the defendant was convicted of conspiracy to possess with intent to distribute a controlled substance under 21 U.S.C. § 846; possession of more than five grams of cocaine base with intent to distribute (and aiding and abetting) under 21 U.S.C. §§ 841(a)(1) & (b)(1)(B) and 18 U.S.C. § 2; possession of a firearm in furtherance of a drug trafficking crime (and aiding and abetting) under 18 U.S.C. §§ 924(c)(1) & (c)(2); and possession of a firearm by a convicted felon under 18 U.S.C. §§ 922(g)(1) & 924(e). The district court sentenced Abbott to 15 years' imprisonment under § 924(e)(1), and imposed an additional five consecutive years' imprisonment under § 924(c) for possessing a gun in furtherance of a drug trafficking crime. In so doing, the district court rejected Abbott's argument that § 924(c)(1)(A)'s "except" clause precluded imposition of a consecutive 5-year § 924(c) sentence for the same gun possession for which it had sentenced him to 15 years under § 924(e)(1).
In Gould, the defendant pleaded guilty to conspiracy to possess with intent to distribute 50 grams or more of cocaine base in violation of 21 U.S.C. §§ 841, 846 (Count One); and possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c) (Count Three). On resentencing following remand from the Fifth Circuit, the district court sentenced Gould to 137 months in prison on Count One, and to a mandatory consecutive sentence of five years on Count Three, for a total of 197 months. Gould objected, arguing that the "except" clause of § 924(c)(1)(A) precluded the imposition of the five year mandatory minimum on Count Three.
In addition to the two cert grants, the Court also vacated and remanded in Briscoe v. Virginia (07-11191), which had presented the following issue: whether, if a state allows a prosecutor to introduce a certificate of a forensic laboratory analysis, without presenting the testimony of the analyst who prepared the certificate, the state avoids violating the Confrontation Clause of the Sixth Amendment by providing that the accused has a right to call the analyst as his own witness. In its per curiam opinion, the Court simply remanded for reconsideration in light of Melendez-Diaz v. Massachusetts, without analysis of the issue presented.
January 21, 2010
Supreme Court Holds That Jury Selection Must Be Open to the Public; Acts on Several Other Criminal and Habeas Cases
During the past two weeks the Supreme Court has issued several rulings of interest to criminal defense practitioners. On January 20 the Court affirmed the Eleventh Circuit's denial of a habeas petition in a death case, Wood v. Allen (08-9156). The state court had found that the failure of Wood's attorneys' to pursue and present mitigating evidence of his borderline mental retardation was a strategic decision rather than a negligent omission. Wood argued in his habeas petition that the state court's finding was unreasonable under §2254(d)(2) of AEDPA and that, in denying his federal habeas petition, the Court of Appeals for the Eleventh Circuit erroneously conflated the §2254(d)(2) standard with that of §2254(e)(1). The Court held that the state court's factual determination was reasonable even under petitioner's reading of §2254(d)(2), and declined to address that provision's relationship to §2254(e)(1).
The Court issued two per curiam opinions on January 19, Presley v. Georgia (09-5270) and the capital case of Wellons v. Hall (09-5731). In Presley, the Court held for the first time that jury selection in a criminal case must generally be open to the public under the Sixth Amendment guarantee of a public trial, not just the First Amendment. The Court stated, "There is no legitimate reason, at least in the context of jury selection proceedings, to give one who asserts a First Amendment privilege greater rights to insist on public proceedings than the accused has."
In Wellons, the Court granted cert, vacated and remanded pursuant to its recent decision in Cone v. Bell (holding federal habeas review is not barred when a state court had declined to review the merits of a case on the ground that it had done so previously). The Court ordered the Eleventh Circuit to reconsider the case in light of "disturbing facts" in the case that "raise[d] serious questions concerning the conduct of the trial" including ex parte and inappropriate contacts between the jury and the judge and bailiff. See Scotusblog for further analysis of both Presley and Wellons.
On January 12 the Court issued an opinion in the capital case Smith v. Spisak (08-724). The Court held that Ohio's denial of Spisak's habeas petition – in which he had argued that (1) the jury instructions used at his trial unconstitutionally required the jury to consider mitigating factors only if the existence of each factor was unanimously found; and (2) his attorney was constitutionally ineffective, particularly during his closing argument – was not contrary to, or an unreasonable application of, clearly established federal law. See Scotusblog for analysis of the opinion.
On January 11 the Court decided McDaniel v. Brown (08-559), ruling that flaws in presenting DNA evidence during a criminal trial do not necessarily undermine the value of a conviction based in part on that evidence. In an unsigned opinion the Court rejected a sufficiency of the evidence challenge to the conviction, under Jackson v. Virginia, and deemed forfeited a due process claim. It sent back to lower courts a third claim of ineffectiveness of counsel. See Scotusblog for further analysis of the opinion.
January 11, 2010
Supreme Court Grants Cert in Restitution Case
On January 8, the Supreme Court granted cert in Dolan v. United States (09-367), in which it will address whether a district court decision to enter a restitution order beyond the ninety-day time limit prescribed in 18 U.S.C. § 3664(d)(5) must be vacated.
For information on other pending Supreme Court cases of interest to criminal defense practitioners, see Paul Rashkind's Supreme Court Update.
January 6, 2010
Department of Justice Issues New Discovery Policies
On January 4, 2010, Deputy Attorney General David Ogden issued three memoranda regarding criminal discovery practices. According to the DOJ's blog, the memoranda include "guidance regarding criminal discovery that prosecutors should follow to help assure that they meet discovery obligations in future cases."
For full text of the memos see:
Issuance of Guidance and Summary of Actions Taken in Response to the Report of the Department of Justice Criminal Discovery and Case Management Working Group
Requirement for Office Discovery Policies in Criminal Matters
Guidance for Prosecutors Regarding Criminal Discovery
Commentary regarding the new guidance is available at the White Collar Crime Prof Blog.
January 4, 2010
New CJA Panel Attorney Rates Take Effect
Effective January 1, 2010, the non-capital hourly panel attorney compensation rate increased from $110 to $125, and the maximum hourly capital rate increased from $175 to $178. The new hourly compensation rates apply to work performed on or after January 1, 2010; where the appointment of counsel occurred before this effective date, the new compensation rates apply to that portion of services provided on or after January 1, 2010.
The Criminal Justice Act has been amended to raise the case compensation maximums applicable to appointed panel attorneys in non-capital representations "simultaneously" with aggregate percentage increases in the maximum non-capital hourly compensation rate. The new case compensation maximums apply to a voucher submitted by appointed counsel if that person furnished any CJA-compensable work on or after January 1, 2010.
For more information, panel attorneys can access charts indicating current and prior hourly rates, as well as case compensation maximums.
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