DEFENDER SERVICES OFFICE
TRAINING DIVISION





The Defender Services Office Training Division furthers the right to effective assistance of counsel by providing training and other resources to attorneys appointed under the Criminal Justice Act.





    June 28, 2016
    Supreme Court Grants Cert in Johnson Guidelines Case; Issues Opinion Holding Reckless Use of Force Constitutes a Misdemeanor Crime of Domestic Violence Under 18 U.S.C. § 922(g)(9); Vacates McDonnell Public Corruption Convictions
    Yesterday, the Supreme Court Granted Cert in Beckles v. United States (No. 15-8544), to decide the following issues:

    (1) Whether Johnson v. United States applies retroactively to collateral cases challenging federal sentences enhanced under the residual clause in United States Sentencing Guidelines (U.S.S.G.) § 4B1.2(a)(2) (defining “crime of violence”);

    (2) whether Johnson's constitutional holding applies to the residual clause in U.S.S.G. § 4B1.2(a)(2), thereby rendering challenges to sentences enhanced under it cognizable on collateral review; and

    (3) whether mere possession of a sawed-off shotgun, an offense listed as a “crime of violence” only in commentary to U.S.S.G. § 4B1.2, remains a “crime of violence” after Johnson.

    CJA panel attorneys are advised to reach out to the federal defender in their district or National Sentencing Resource Counsel if in doubt on how to proceed in a pending case in light of the cert grant.

    The Court also issued a decision in  Voisine v. United States (No. 14-10154), holding in a 6-2 opinion that misdemeanor  assault  convictions  for  reckless  conduct are misdemeanor crimes of domestic violence that trigger the ban on possession of firearms under 18 U.S.C. § 922(g)(9).  For more on the opinion see these posts on the Sentencing Law and Policy Blog and  SCOTUSblog.

    Additionally, the Court scaled back what is considered an "official act" for the purposes of a federal bribery conviction in the unanimously decided  McDonnell v. United States (No. 15-474).  For more on the opinion see this SCOTUSblog post.








    June 24, 2016
    Implications of Yesterday's Immigration Ruling by Supreme Court
    In addition to the decisions in Mathis and Birchfield (discussed in the post below), the Supreme Court's action in United States v. Texas also has implications for criminal defense practitioners.  The Court issued a one-sentence, evenly split (4-4) ruling that essentially leaves intact a nationwide injunction on the Deferred Action for Parents of Americans (DAPA) and the expansion of the 2012 Deferred Action for Childhood Arrivals (DACA+) programs, which promised temporary relief from the fear of deportation for four million immigrants and families. As a result of the Supreme Court's decision, DAPA and DACA+ will continue to be stalled. Nonetheless, DACA I, the original administrative relief program for certain individuals who arrived in the United States as minors, continues to exist. The National Immigration Justice Center (NIJC) encourages defense attorneys representing noncitizens who may qualify for DACA I to continue to assess for potential relief in those cases, as well as other forms of immigration relief for which individuals may qualify.  Criminal Defense attorneys should contact the NIJC's Defenders Initiative via email at defenders@heartlandalliance.org or via phone at (312) 660-1610 for any questions relating to the Supreme Court's decision or other questions on the immigration consequences for noncitizen defendants facing criminal charges.


    June 23, 2016
    Defense Win in Supreme Court ACCA Case; Court Also Rules on Fourth Amendment Challenge to DUI Implied Consent Laws
    In Mathis v. United States (No. 15-6092), decided today, the Supreme Court rejected the use of the modified categorical approach to determine whether a past conviction triggers ACCA's 15-year mandatory minimum sentence when the defendant is convicted under a statute that lists multiple, alternative means of satisfying one (or more) of its elements.  Instead, the categorical approach must be used if it is clear under authoritative state law that the statute lists alternative means, and not alternative elements. 

    The Court also issued an opinion in Birchfield v. North Dakota (No. 14-1468), holding that the Fourth Amendment permits the government to require breath alcohol tests in DUI arrests, but it does not permit warrantless blood tests.

    At issue in Mathis was an Iowa conviction for burglary, which covers more conduct than generic burglary by permitting a conviction for unlawful entry into a variety of places: "any building, structure, [or] land, water, or air vehicle."  In the majority opinion (written by Justice Kagan and in which Chief Justice Roberts and Justices Kennedy, Thomas and Sotomayor joined), the Court strongly reaffirmed the use of the categorical approach:

    "Our precedents make this a straightforward case. For more than 25 years, we have repeatedly made clear that application of ACCA involves, and involves only, comparing elements.  Courts must ask whether the crime of conviction is the same as, or narrower than, the relevant generic offense.  They may not ask whether the defendant's conduct - his particular means of committing the crime - falls within the generic definition.  And that rule does not change when a statute happens to list possible alternative means of commission: Whether or not made explicit, they remain what they ever were - just the facts, which ACCA (so we have held, over and over) does not care about."






    June 21, 2016
    Supreme Court Further Limits Exclusionary Rule, Permits Hobbs Act Prosecution for Robbery of Drug Dealer without Proof of Interstate Effects; Grants Cert on Foreign Nationals' Right to Bond Hearings in Immigration Detention
    Yesterday, the Supreme Court issued opinions in Utah v. Strieff (No. 14-1373) and Taylor v. United States (No. 14-6166). 

    The Court dealt another blow to the exclusionary rule in Strieff, holding in a 5-3 opinion delivered by Justice Thomas that the prosecution could use evidence seized incident to a lawful arrest on an outstanding warrant even though the warrant was discovered during an investigatory stop later found unlawful.  According to the majority opinion (joined by Chief Justice Roberts and Justices Kennedy, Breyer and Alito), "the evidence the officer seized as part of the search incident to arrest is admissible because the officer's discovery of the arrest warrant attenuated the connection between the unlawful stop and the evidence seized incident to arrest."  For an opinion analysis see this SCOTUSblog post.

    In Taylor, the Court held in a 7-1 opinion (Justice Thomas dissenting) that the Government need not separately prove the "affects commerce element"  in a Hobbs Act prosecution for robbery or attempted robbery of a drug dealer's stash.  The Court reasoned that "a robber who affects or attempts to affect even the intrastate sale of marijuana grown within the State affects or attempts to affect commerce over which the United States has jurisdiction."  For more on the opinion see this SCOTUSblog post.

    The Court also granted cert in Jennings v. Rodriguez (No. 15-1204), an immigration case raising the following questions:
    1) Whether aliens seeking admission to the United States who are subject to mandatory
    detention under 8 U.S.C. Section 1225(b) must be afforded bond hearings, with the possibility of release into the United States, if detention lasts six months; 2) Whether criminal or terrorist aliens who are subject to mandatory detention under 8 U.S.C. Section 1226(c) must be afforded bond hearings, with the possibility of release, if detention lasts six months; (3) Whether, in bond hearings for aliens detained for six months under 8 U.S.C. Sections 1225(b), 1226 (c), or 1226(a), the alien is entitled to release unless the government demonstrates by clear and convincing evidence that the alien is a flight risk or a danger to the community; whether the length of the alien's detention must be weighed in favor of release; and whether new bond hearings must be afforded automatically every six months.

    June 13, 2016
    Recent Supreme Court Opinions and Cert Grants
    The Supreme Court has recently decided three cases and granted cert in two cases of interest to criminal defense practitioners:

    Today, the Court issued a unanimous opinion in United States v. Bryant (No. 15-420), holding that uncounseled tribal court convictions that are valid under the Indian Civil Rights Act can be used as predicate convictions in a prosecution for domestic violence in Indian country under 18 U. S. C. §117(a).  For more on the opinion see this SCOTUSblog post.

    On June 9, the Court decided Puerto Rico v. Sanchez Valle (No. 15-108) holding, in a six-to-two ruling, that the Double Jeopardy Clause prohibits Puerto Rico and the United States from successively prosecuting a single defendant for the same criminal conduct. According to the majority opinion, authored by Justice Kagan, because Puerto Rico is not a separate sovereign, it cannot rely on the dual sovereignty doctrine exception to the Double Jeopardy Clause, under which a single act can give rise to two distinct offenses. Justice Ginsburg wrote a concurring opinion, in which Justice Thomas joined, to "flag a larger question that bears fresh examination in an appropriate case"  in which the defendant faces successive prosecutions by "parts of the whole USA."   For more on the opinion see this SCOTUSblog post.

    In Williams v. Pennsylvania (No. 15-5040), also decided on June 9, a divided Court held that it was a violation of Due Process when a Pennsylvania Supreme Court judge refused to recuse himself in the review of William's post-conviction claim, even though he had served as the district attorney who officially approved seeking the death penalty against Williams.  For more on the opinion see this SCOTUSblog post.

    On June 6 the Court granted cert in Buck v. Stephens (No. 15-8049) to decide the following:
    "[D]id the United States Court of Appeals for the Fifth Circuit impose an improper and unduly burdensome Certificate of Appealability (COA) standard that contravenes this Court's precedent and deepens two circuit splits when it denied Mr. Buck a COA on his motion to reopen the judgment and obtain merits review of his claim that his trial counsel was constitutionally ineffective for knowingly presenting an 'expert' who testified that Mr. Buck was more likely to be dangerous in the future because he is Black, where future dangerousness was both a prerequisite for a death sentence and the central issue at sentencing?" 

    Also on June 6 the Court granted cert in Moore v. Texas (No. 15-797) to decide whether it violates the Eighth Amendment and Hall v. Florida and Atkins v. Virginia "to prohibit the use of current medical standards on intellectual disability, and require the use of outdated medical standards, in determining whether an individual may be executed."
     
    For more on the June 6 grants see this SCOTUSblog post.

     



    May 24, 2016
    Recent Supreme Court Rulings - No Speedy Trial Right at Sentencing, Georgia Prosecutors Violated Batson in Death Case
    Last week the Supreme Court issued its opinion in Betterman v. Montana (No. 14-1457), holding that the right to a speedy trial does not apply at sentencing.  In the majority opinion Justice Ruth Bader Ginsburg wrote, "the  [speedy trial] guarantee  protects  the  accused  from arrest or indictment through trial, but does not apply once a  defendant  has  been  found  guilty  at  trial  or  has  pleaded guilty  to  criminal  charges.    For  inordinate  delay  in  sentencing, although  the  Speedy  Trial  Clause  does  not  govern,  a  defendant  may  have  other recourse,  including,  in appropriate  circumstances,  tailored  relief  under  the  Due Process Clauses of the Fifth and Fourteenth Amendment."  See this SCOTUSblog post for more on the case. 

    Yesterday the Court also issued its opinion in Foster v. Chatman (14-8349), reviewing Foster's Batson claim and ruling that the prosecution in his death penalty trial were "motivated in substantial part by race" in striking two black prospective jurors.  For more on the case see this SCOTUSblog post.  

    April 26, 2016
    Supreme Court Grants Cert on Intent Requirement for Bank Fraud Offense, and Jurisdictional Question in Appeal of Deferred Restitution Award
    Yesterday the Supreme Court granted cert in two criminal cases. In  Shaw v. United States  (No. 15-5991) the Court will address whether, in the bank-fraud statute, 18 U.S.C. § 1344, subsection (1)’s “scheme to defraud a financial institution” requires proof of a specific intent not only to deceive, but also to cheat, a bank, as nine circuits have held. 

    In Manrique v. United States (No. 15-7250) the question presented is: Should the Court grant certiorari to resolve the significant division among the circuits concerning the jurisdictional prerequisites for appealing a deferred restitution award made during the pendency of a timely
    appeal of a criminal judgment imposing sentence.

    For more on these cases see this SCOTUSblog post.

    April 21, 2016
    Supreme Court Clarifies Standard of Review When a Sentencing Court Applies an Incorrect Guideline Range
    Yesterday the Supreme Court issued an 8-0 decision in Molina-Martinez v. United States (No. 14-8913), rejecting the Fifth Circuit's  conclusion that "a  defendant seeking appellate review of an unpreserved Guidelines error  [must] make  some  further  showing  of  prejudice  beyond  the  fact  that  the  erroneous,  and  higher,  Guidelines  range  set  the wrong framework for the sentencing proceedings."  As Justice Kennedy explained in the majority opinion, "This is  so  even  if  the  ultimate  sentence  falls  within  both  the  correct  and  incorrect  range.    When  a  defendant  is  sentenced  under  an  incorrect  Guidelines  range—whether  or  not  the defendant’s  ultimate  sentence  falls  within  the  correct range—the error itself can, and most often will, be sufficient  to  show  a  reasonable  probability  of  a  different  outcome absent the error."  For more on the opinion see this SCOTUSblog post by Douglas Berman.

    April 19, 2016
    Johnson Is Retroactive, Supreme Court Declares
    Yesterday the Supreme Court issued a 7-1 opinion in Welch v. United States (No. 15-6418), holding that the rule in Johnson - that ACCA's residual clause is void for vagueness - is substantive and therefore has retroactive effect in cases on collateral review.  For more on the opinion see this SCOTUSblog post.

    April 19, 2016
    Sentencing Commission Amends Guidelines
    On April 15, 2016 the Sentencing Commission voted to amend the sentencing guidelines, making some significant changes in immigration policy, as well as changes to the child pornography, compassionate release, conditions of supervision, and animal fighting guidelines.  For a summary of the amendments, see the USSC's press release.  For the full text, see the Reader-Friendly Version of Amendments.  Absent Congressional action, the amendments will take effect on November 1, 2016.  

    April 05, 2016
    Supreme Court Issues SORNA Decision and Grants Cert on Juror Bias Issue
    Yesterday the Supreme Court issued a unanimous opinion in Nichols v. United States (No. 15-5238), holding that Mr. Nichols was not required under SORNA to update his sex offender registration in Kansas when he moved to the Philippines.  Based on the statutory language, the Court reasoned that  "[a] person who moves from Leavenworth to Manila no longer 'resides' (present tense) in Kansas;  although  he  once resided in  Kansas,  after  his  move  he  'resides'  in  the  Philippines."  For more on the opinion see this SCOTUSblog post.

    The Court also granted cert in Pena-Rodriguez v. Colorado (No. 15-606) to decide whether a no-impeachment rule constitutionally may bar evidence of racial bias offered to prove a violation of the Sixth Amendment right to an impartial jury.  For more on the case see this SCOTUSblog post.

    Lastly, the Court issued a per curiam opinion in Woods v. Etherton (No. 15-723) to summarily reverse on AEDPA deference grounds a decision by the Sixth Circuit in favor of a state habeas petitioner.

    March 30, 2016
    Supreme Court to Hear Double Jeopardy Claim; Issues Opinion in Counsel of Choice Case
    On March 28th, the Supreme Court granted cert in Bravo-Fernandez v. United States (No. 15-537) to decide the following issues: (1) whether, under Ashe v. Swenson and Yeager v. United States, a vacated, unconstitutional conviction can cancel out the preclusive effect of an acquittal under the collateral estoppel prong of the Double Jeopardy Clause; and (2) whether, under Evans v. Michigan, the Double Jeopardy Clause permits a district court to retract its “judgment of acquittal” entered on remand as an interpretation of the Court of Appeals’ mandate.  For more on the case see this SCOTUSblog post.

    In addition, today the Court decided Luis v. United States, holding that a pretrial freeze of untainted assets violates a criminal defendant’s Sixth Amendment right to counsel of choice. 

    For a summary of all pending or recently decided Supreme Court cases relevant to the criminal defense practitioner read Paul Rashkind's Supreme Court Update.

    March 04, 2016
    Supreme Court Issues Opinion Interpreting 10-Year Mandatory Minimum Trigger for Possession of Child Pornography Conviction
    On Monday, February 29th, the Supreme Court held in Lockhart v. United States (No. 14-8358) that Mr. Lockhart's prior conviction for sexual abuse of his then-girlfriend, aged 53, qualifies as a predicate offense for purposes of triggering the 10-year mandatory minimum under 18 U.S.C. § 2252(b)(2).  That section subjects defendants to the mandatory minimum if they have "a prior conviction . . . under the law of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward."  According to the Court the phrase "involving a minor or ward" in § 2252(b)(2) modifies only "abusive sexual conduct."  For more on the opinion, see this SCOTUSblog post.

    January 27, 2016
    Latest Opinions and Cert Grants by the Supreme Court Address Numerous Issues of Interest to Criminal Defense Practitioners
    The Supreme Court on Monday issued two opinions:

    Montgomery v. Louisiana (No. 14-280): holding that the rule prohibiting mandatory life without parole for a juvenile convicted of a homicide offense is a substantive rule to which courts must give retroactive effect on collateral review. See this SCOTUSblog post for opinion analysis.

    Mussachio v. United States (No. 14-1095): holding (1)  When a jury instruction adds an element to the charged crime and the government fails to object, a challenge to the sufficiency of the evidence should be assessed against the elements of the charged crime, rather than the elements set forth in the erroneous jury instruction; and (2) a defendant cannot successfully raise a statute-of-limitations bar for the first time on appeal. See this SCOTUSblog post for opinion analysis.

    In addition, the Supreme Court has recently granted cert on a range of issues, including the modified categorical approach under ACCA, recalling jurors after dismissal of the jury from service, the proof necessary to establish insider trading, and the type of "official action" necessary for a felony conviction under the Hobbs Act and honest-service fraud statute. Click on the link below for case names and issues presented.

    Cert Grants

    Mathis v. United States (No. 15-6092)
    Issue: Whether a predicate prior conviction under the Armed Career Criminal Act must qualify as such under the elements of the offense simpliciter, without extending the modified categorical approach to separate statutory definitional provisions that merely establish the means by which referenced elements may be satisfied rather than stating alternative elements or versions of the offense.

    Salman v. United States (No. 15-628)
    Issue: Does the personal benefit to the insider that is necessary to establish insider trading under Dirks v. SEC, 463 U.S. 646 (1983), require proof of "an exchange that is
    objective, consequential, and represents at least a potential gain of a pecuniary or
    similarly valuable nature," as the Second Circuit held in United States v. Newman, 773
    F.3d 438 (2d Cir. 2014), cert. denied, No. 15-137 (U.S. Oct. 5, 2015), or is it enough
    that the insider and the tippee shared a close family relationship, as the Ninth Circuit
    held in this case?

    Dietz v. Bouldin (No. 15-458)
    Issue: Whether, after a judge has discharged a jury from service in a case and the jurors have left the judge's presence, the judge may recall the jurors for further service in the same case.

    McDonnell v. United States (No. 15-474)
    Whether “official action” under the controlling fraud statutes is limited to exercising actual governmental power, threatening to exercise such power, or pressuring others to exercise such power, and whether the jury must be so instructed; or, if not so limited, whether the Hobbs Act and honest-services fraud statute are unconstitutional.

    January 08, 2016
    Supreme Court Grants Cert on Johnson Retroactivity; Sentencing Commission Votes to Change Definition of Crimes of Violence and Proposes New Guideline Amendments
    Today, the Supreme Court granted cert in Welch v. United States (No. 15-6418) to determine "whether Johnson v. United States announced a new substantive rule of constitutional law that applies retroactively to cases on collateral review."  While opposing cert in Welch, the Justice Department had previously taken the position in another case, Harrimon v. United States, that the Johnson rule was substantive. For more on Welch see this SCOTUSblog post.

    Also today, the Sentencing Commission adopted an amendment to the "crimes of violence" definition in Guideline 4B1.2.  Among other changes, the amendment strikes burglary of a dwelling from the crimes of violence definition. View all of the changes to 4B1.2 in this Reader Friendly Version of Amendment on Crime of Violence.  The new amendment will take effect August 1, 2016.  For more on the Amendment see the Sentencing Commission's press release

    In addition to the Crimes of Violence amendment, the Sentencing Commission issued its Proposed Amendments to the Sentencing Guidelines for 2016. The proposed amendments include: 2L1.2, alien smuggling, child porn distribution with file sharing programs, age and vulnerable victim enhancements, conditions of probation and supervised release, animal fighting, compassionate release and other miscellaneous amendments. View the Sentencing Commission's press release for more information.

    December 14, 2015
    Supreme Court to Rule on Warrantless Drunk Driving Tests; Use of Uncounseled Tribal Court Misdemeanor Convictions in 18 U.S.C. Section 117(a) Prosecutions
    On Friday, December 11, the Supreme Court granted cert in three state cases to decide whether a blood or breath test for drunk driving can be made without a search warrant and whether, in the absence of a warrant, a state may make it a crime for a person to refuse to take the test.  The three cases, which will be consolidated for argument, are: Birchfield v. North Dakota (No. 14-1468), Bernard v. Minnesota (No. 14-1470), and Beylund v. Levi (14-1507).  For more on the cases see this SCOTUSblog post.

    Today, the Court granted cert in an additional case, United States v. Bryant (No. 15-420)  to decide whether it is constitutional to rely on valid uncounseled tribal-court misdemeanor convictions to prove the predicate-offense element of 18 U.S.C. Section 117(a).  That statute makes it a federal crime for a person to "commit[] a domestic assault within the special maritime and territorial jurisdiction of the United States or Indian country" if the person "has a final conviction on at least 2 separate prior occasions in Federal, State, or Indian tribal court proceedings for" enumerated domestic violence offenses.

    The Court also issued a per curiam opinion in the capital case of White v. Wheeler (No. 14-1372), summarily reversing the Sixth Circuit's grant of habeas relief on Roger Wheeler's Witherspoon/Witt juror bias claim.

    December 08, 2015
    Supreme Court to Decide Whether Speedy Trial Clause Applies to Sentencing
    On December 4, 2015 the Supreme Court granted cert in Betterman v. Montana (No. 14-1457) to address the following: "Whether the Sixth Amendment’s Speedy Trial Clause applies to the sentencing phase of a criminal prosecution, protecting a criminal defendant from inordinate delay in final disposition of his case."

    November 09, 2015
    Supreme Court to Decide SORNA's Applicability to Sex Offenders Who Reside Abroad
    On Friday, November 6, 2015, the Supreme Court granted cert in Nichols v. United States (No. 15-5238) to decide whether 42 U.S.C. § 16913(a) requires a sex offender who resides in a foreign country to update his registration in the jurisdiction where he formerly resided, a question that divides the courts of appeals.

    November 02, 2015
    Supreme Court to Address Definition of Misdemeanor Crime of Domestic Violence Under 18 U.S.C. 922 (g)(9)
    On October 30, 2015 the Supreme Court granted cert in Voisine v. United States (No. 14-10154) to address whether a misdemeanor crime with the mens rea of recklessness qualifies as a "misdemeanor crime of domestic violence" as defined by 18 U.S.C. §§ 921(a)(33)(A) and 922(g)(9).

    November 02, 2015
    Amendments to Sentencing Guidelines Take Effect; Guidelines Manual Now Available
    On November 1, 2015 amendments to the federal sentencing guidelines took effect.  The 2015 U.S. Sentencing Commission Guidelines Manual is now available online.  For more information on the amendments, access the Commission's 2015 Amendments Online Education Program.

 

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