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
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
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
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
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
October 08, 2015
Sentencing Bills Introduced in House and Senate Offer Renewed Hope for Legislative Reform
The House of Representatives has introduced a new bill, The Sentencing Reform Act
, that largely mirrors The Sentencing Reform and Corrections Act of 2015
(S. 2123), a bipartisan bill introduced last week in the U.S. Senate by Senators Chuck Grassley (R-IA), Dick Durbin (D-IL), John Cornyn (R-TX), and Patrick Leahy (D-VT), among others.
The Sentencing Reform and Corrections Act of 2015 would reduce several federal mandatory minimum drug and gun sentences and make those reductions retroactive; make the Fair Sentencing Act of 2010 retroactive; expand the federal “safety valve” exception for drug mandatory minimum sentences; and allow many federal prisoners to earn time credits for completing rehabilitative programs in prison.
Read more about these bills and other sentencing legislation pending in Congress at famm.org
October 02, 2015
Supreme Court Opens New Term with 5 Cert Grants in Cases of Interest to Criminal Defense Practitioners
Yesterday, the Supreme Court granted cert in the following five cases.
(1) Taylor v. United States
(No. 14-6166) Question Presented
Whether, in a federal criminal prosecution under the Hobbs Act, 18 U.S.C. §1951, the Government is relieved of proving beyond a reasonable doubt the interstate commerce element by relying exclusively on evidence that the robbery or attempted robbery of a drug dealer is an inherent economic enterprise that satisfies, as a matter of law, the interstate commerce element of the offense.
(2) Utah v. Strieff
(No. 14-1373) Question Presented:
Should evidence seized incident to a lawful arrest on an outstanding warrant be suppressed because the warrant was discovered during an investigatory stop later
found to be unlawful?
(3) Molina-Martinez v. United States
(No 14-8913) Question Presented:
Where an error in the application of the United States Sentencing Guidelines results in
the application of the wrong Guideline range to a criminal defendant, should an
appellate court presume, for purposes of plain-error review under Federal Rule of
Criminal Procedure 52(b), that the error affected the defendant's substantial rights?
(4) Williams v. Pennsylvania
(No. 15-5040) Questions Presented:
(a) Are the Eighth and Fourteenth Amendments violated where the presiding Chief Justice of a State Supreme Court declines to recuse himself in a capital case where he had personally approved the decision to pursue capital punishment against Petitioner in his prior capacity as elected District Attorney and continued to head the District Attorney's Office that defended the death verdict on appeal; where, in his State Supreme Court election campaign, the Chief Justice expressed strong support for capital punishment, with reference to the number of defendants he had "sent" to death row, including Petitioner; and where he then, as Chief Justice, reviewed a ruling by the state post-conviction court that his office committed prosecutorial misconduct under Brady
when it prosecuted and sought death against Petitioner?
(b) Are the Eighth and Fourteenth Amendments violated by the participation of a potentially biased jurist on a multimember tribunal deciding a capital case, regardless of whether his vote is ultimately decisive?
(5) Duncan v. Owens
(No. 14-1516) Question Presented:
No clearly established precedent of this Court holds that it violates the Constitution for a finder of fact to infer a criminal defendant's motive when the motive is a non-element of the offense and is not directly established by the evidence at trial. Respondent claimed that the judge at his bench trial made improper “extrajudicial” findings regarding his motive and thus found him guilty based on evidence not produced at trial. The state appellate court upheld respondent's conviction, holding that the trial court's speculation regarding motive was harmless. The Seventh Circuit overturned respondent's conviction on habeas corpus review, finding that the trial court's inference about motive violated respondent's right to have his guilt adjudicated solely on the evidence introduced at trial, and that the error was not harmless. Did the Seventh Circuit violate 28 U.S.C. § 2254 and a long line of this Court's decisions by awarding habeas relief in the absence of clearly established precedent from this Court?"
September 11, 2015
NACDL Issues Report on Federal Indigent Defense System
Federal Indigent Defense 2015: The Independence Imperative
assesses the current state of the federal indigent defense system, and offers seven recommendations to address serious and persistent deficiencies revealed in its assessment.
August 12, 2015
Fourth Circuit Ruling on Warrant Requirement for Historical Cell Site Records Creates Circuit Splits
Last week, the Fourth Circuit in United States v. Graham
held that there was an expectation of privacy in historical cell site records and that a warrant is required to obtain and inspect such information. The case it at odds with several other Circuit rulings, which may lead to Supreme Court review. For an analysis of the case see: Fourth Circuit adopts mosaic theory, holds that obtaining “extended” cell-site records requires a warrant
June 30, 2015
Supreme Court Rejects Challenge to Lethal Injection Protocol; Grants Cert on Two Criminal Procedure Issues
Yesterday the Supreme Court issued its opinion in Glossip v. Gross
(No. 14-7955), rejecting an Eighth Amendment challenge to Oklahoma's lethal injection drug protocol. For more on the opinion see this SCOTUSblog post
The Supreme Court also granted cert in Musacchio v. United States
(No. 14-1095), which raises the following questions:
(1) Whether the law-of-the-case doctrine requires the sufficiency of the
evidence in a criminal case to be measured against the elements described
in the jury instructions where those instructions, without objection,
require the government to prove additional or more stringent elements than
do the statute and indictment?
(2) Whether a statute-of-limitations defense not raised at or before trial
is reviewable on appeal?
June 26, 2015
Supreme Court Strikes Down ACCA Residual Clause as Unconstitutional
Earlier today the Supreme Court held in Johnson v. United States
that the residual clause of the Armed Career Criminal Act, 18 U.S.C. §924(e)(2)(B), is unconstitutionally vague:
"We hold that imposing an increased sentence under the residual clause of the Armed Career Criminal Act violates the Constitution’s guarantee of due process. Our contrary holdings in James
are overruled. Today’s decision does not call into question application of the Act to the four enumerated offenses, or the remainder of the Act’s definition of a violent felony." Scalia, J.