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Kirk Redmondhttp://www.blogger.com/profile/05149425706408433721noreply@blogger.comBlogger638125
Updated: 2 hours 1 min ago

In the news: Real tigers vs. paper tigers

Mon, 02/17/2020 - 08:49

1. Judge Jack Weinstein, district judge in Eastern District of New York  and Wichita native son, steps down from the bench. His decisions were marked by compassion, see United States v.Bannister, 786 F.Supp.2d 617 (EDNY 2010), when he toured the defendants' impoverished neighborhood; and a sense of justice, see NYT, The 96-Year-Old Brooklyn Judge Standing Up to the Supreme Court:

‘The Supreme Court’s recent emphasis on shielding public officials and federal and local law enforcement means many individuals who suffer a constitutional deprivation will have no redress,’ he wrote.
We will miss him, and wish him the best in retirement.2. “State-federal task forces are out of control.” Radley Balko writes for the Washington Post, reviewing the history and efficacy of joint-task forces, (“Nixon wanted ‘strike forces’ that could kick down doors and put the fear of God into drug offenders without burdensome hurdles like the Fourth Amendment or the separation of powers”). Today, they are ubiquitous and unaccountable. (“With little oversight, they have a record of overstepping and misdeeds, from excessive force to shootings, to mistaken raids, to straight up corruption. and the persistent lack of accountability.”)3. Four federal prosecutors stood up to the Department of Justice’s interference in a local prosecution, followed by a paper tigerfrom 1100 former prosecutors who implored,

[W]e call on every DOJ employee to follow their heroic example and be prepared to report future abuses to the Inspector General, the Office of Professional Responsibility, and Congress; to refuse to carry out directives that are inconsistent with their oaths of office; to withdraw from cases that involve such directives or other misconduct; and, if necessary, to resign and report publicly—in a manner consistent with professional ethics—to the American people the reasons for their resignation.
If only.
− Melody

February(ish) Fourth Amendment Extravaganza

Wed, 02/12/2020 - 12:40
Seizure: In United States v. Hood, a D.C. district court held that a defendant was seized when a uniformed and armed officer got out of his car, approached the defendant on foot, shined a flashlight at him, and told him to "hold on a sec." Because there was no reasonable suspicion justifying the detention, the firearm subsequently discovered in the defendant's waistband was suppressed.

Exigent Circumstances: In United States v. Rodriguez-Pacheco, the First Circuit held that the officers' warrantless entry into the defendant's home to investigate a domestic-violence allegation was unconstitutional. The court rejected the government's exigent circumstances justification, holding that  the fact that the the defendant was a police officer who kept his service weapon at home did not justify the entry. The court noted that the defendant was unarmed, had not threatened violence, had no history of violence, and the gun was not connected to the crime being investigated. The information found from a search of the cellphone, camera and laptop seized during the entry was suppressed.

Warrant Overbreadth: In United States v. Burkhow, an Iowa district court held that a warrant authorizing the search of the defendant's entire Facebook account was overbroad, and exceeded the probable cause on which the warrant was based. The court noted that the warrant did not contain temporal limitations, or any restrictions to a specific type of account activity or interactions with specific people. "Given that social media profiles often contain a wide array of personal data spanning years, some restriction here was necessary to prevent a general rummaging beyond limiting seizure to the offenses being investigated."

Right to Observe the Police: In Chestnut v. Burds, the Eighth Circuit affirmed the denial of qualified immunity to a police officer who stopped, frisked, and handcuffed a bystander watching another police officer perform traffic stops. The court found there were genuine disputes of fact, such as whether the bystander was suspiciously "lurking" in the darkness, or whether he purposefully remained visible to the officers. The court also held that if the bystander was, as he says, visible and not interfering, then the officer clearly violated his "clearly established right to watch police-citizen interactions at a distance and without interfering."

Tenth Circuit Breviaries

Sun, 02/09/2020 - 16:05
Last week at the Tenth Circuit:

Unlawful reentry

A person charged with unlawful reentry may collaterally challenge the prior removal order that rendered reentry unlawful under 8 U.S.C. § 1326(d). But not if that prior removal order was expedited. At least not according to 8 U.S.C. § 1225(b)(1)(D), which purports to deprive courts of jurisdiction to consider collateral attacks on expedited removal orders.

Section 1225(b)(1)(D) is unconstitutional. So declared the Tenth Circuit in United States v. Gonzalez-Fierro, explaining that "it deprives a defendant like Gonzalez-Fierro of due process; that is, § 1225(b)(1)(D) allows the Government to use an unreviewed expedited removal order to convict a defendant of the § 1326(a) offense of unlawfully  reentering the United States after a prior removal."

Unfortunately for Mr. Gonzalez-Fierro, his collateral challenge fails under the strict terms of § 1326(d).

Pre-sentencing plea withdrawal

Did the law change between your client's plea and sentencing, and if so, did that change render your client's plea not knowing and voluntary? Check out United States v. Zayas (unpublished), holding that the district court should have granted a pre-sentencing motion to withdraw a plea on grounds that the defendant was not aware of the mens rea requirement required to prove her guilt (nope, not a Rehaif case, but an Assimilated Crimes Act case based on a New Mexico statute that, after Ms. Zayas's plea, the New Mexico Supreme Court interpreted as having a higher mens rea than precedent had previously held).

In the custody, care, or supervisory control of the defendant, USSG § 2A3.2(b)(1)

In United States v. Blackbird, the Tenth Circuit found error in the district court's application of this 4-level sentencing enhancement to Mr. Blackbird, who pleaded guilty to attempted sexual abuse of his 15-year-old granddaughter. Merely showing that Mr. Blackbird was the victim's grandfather was not enough; neither was showing that he exploited an opportunity when she was home alone. There was no evidence that Mr. Blackbird was babysitting or otherwise responsible for his granddaughter. Sentence vacated.

News roundup: Fresh fingerprints, old gang databases, and a new defense.

Wed, 02/05/2020 - 10:30

Links to some recent articles:

El Chapo1. The Economist reports, “Fingerprints can now be dated to within a day of when they were made,” making a case of “Whendunnit?”
2. The Los Angeles Times reports on February 3, 2020, “ LAPD scandal opens window into California’s secret gang database as reforms debated.” The scandal involves some 20 LAPD police officers “falsifying information used to identify gang members” in the state’s database, CalGang, and the state's lagging reform effort. Kansas’s system suffers from a similar lack of transparency, accountability, and veracity.* 

3. And in the category of “why didn’t I think of that?,” next time you have a hopeless case set for trial, just move to exclude all witnesses and evidence. Apparently, that’s a thing. Andy Borowitz of the New Yorker describes, “El Chapo outraged his trial included witnesses.” (quasi-satire warning).


*If you are grappling with this issue, be sure to read, “Fear Itself: The impact of allegations of gang affiliation on pre-trial detention,” 23 St. Thomas L. Rev. 620 (2011).

Wait---I'm transporting WHAT?

Mon, 02/03/2020 - 17:30

Your client has been charged with a drug-trafficking conspiracy after being stopped carrying a backpack containing drugs. He knew that he was transporting drugs. But can he be convicted (and can his mandatory minimum sentence be enhanced) based on drug type and quantity absent proof that he knew these details? The Ninth Circuit has just asked the parties to brief these questions (under different facts) in United States v. Collazo, Ninth Circuit No. 15-50509, et seq. (order filed 1/29/2020). The case is in an interesting posture: After argument to a three-judge panel, the panel asked the parties to address whether the case should be heard initially en banc. The court ultimately voted to hear the matter en banc, and it was argued and submitted to the en banc court on January 13, 2020.Last week, the en banc court requested further briefing, specifically:1. How do United States v. Feola, 420 U.S. 671 (1975), and its progeny in this Circuit, see, e.g., United States v. Hubbard, 96 F.3d 1223, 1229 (9th Cir. 1996); United States v. Baker, 63 F.3d 1478, 1491 n.16 (9th Cir. 1995), apply to the government’s burden of proving that a defendant is guilty of conspiracy under 21 U.S.C. § 846 for agreeing to commit an offense under § 841(a), (b)? The parties should address whether the requisite intent for conspiracy under § 846 is the same as the requisite intent for distributing a controlled substance under § 841(a), (b). The parties should also address whether the government has to prove beyond a reasonable doubt that the scope of the defendant’s agreement for a § 846 and § 841(a), (b) offense includes a particular drug type and quantity. In connection with these issues, does the rule in Feola apply only to jurisdictional elements, or does it also apply to elements such as drug type and quantity?2. Whether this Court should adopt Judge W. Fletcher’s position in United States v. Jefferson, 791 F.3d 1013, 1019 (9th Cir. 2015) (W. Fletcher, J., concurring), as to both substantive drug offenses under § 841(a) and conspiracy offenses under § 846. See Jefferson, 791 F.3d at 1023 (“I do not believe the government can subject the defendant to escalating mandatory minimums . . . without proving that he knew which illegal drug he was importing.”).3. Whether this Court should adopt the approach reflected in United States v. Gentry, 941 F.3d 767, 785–86, 794 (5th Cir. 2019) (requiring that defendant “knew or reasonably should have known that the scope of the conspiracy involved at least 50 grams of a mixture containing a detectable amount of meth”).The Ninth Circuit's en banc interest in these questions makes it a good time to preserve this issue by requesting appropriate jury instructions and challenging sentencing enhancements absent drug type/quantity admissions (at a guilty plea) or a verdict (at trial) in your own cases. Watch this space for further developments.  

Tenth Circuit Breviaries

Sun, 02/02/2020 - 09:12
Last week at the Tenth Circuit:

Fed. R. Evid. 404(b)

Evidence that the victim of a stabbing was under the influence of methamphetamine at the time of the stabbing was relevant for a non-propensity purpose: to establish and explain the victim's erratic and violent behavior, in support of the defendant's self-defense defense. This evidence should not have been excluded on 404(b) grounds. And thus the Tenth Circuit reverses a first-degree murder conviction in United States v. Tony

Parsing the Plea Agreement

Think you've extracted a promise from the government in your client's plea agreement? Think again---especially if the language includes a condition to be determined "in the government's sole discretion." That's the lesson of United States v. Rubbo, which holds that the government did not breach a plea agreement by recommending a smaller percentage departure than "promised." Read Rubbo for a sense of how the Tenth Circuit reads plea agreements that are conditioned on acts of the defendant as interpreted by the government.

Take a look at the report of the Third Circuit Task Force on Eyewitness Identifications

Wed, 01/29/2020 - 14:00
The Third Circuit Task Force on Eyewitness Identification has issued a comprehensive report that is chock full of information and resources. The Task Force was comprised of a variety of stakeholders, including appellate judges, district court judges, law enforcement officers, professors and researchers, a prosecutor, and a public defender. The task force was charged with making recommendations “to promote reliable practices for eyewitness investigation and to effectively deter unnecessarily suggestive identification procedures, which raise the risk of wrongful conviction.” The report reviews science-based research to identify factors and practices that increase or reduce the likelihood of an erroneous identification. The report then makes best-practice recommendations for all types of identification procedures. The report also makes recommendations for changes to the Third Circuit pattern jury instructions about eyewitness identifications. Take a look at the whole report.

Tenth Circuit Breviaries

Sun, 01/26/2020 - 18:29
Last week at the Tenth Circuit was Fourth Amendment week:

Fourth Amendment

In United States v. Sadlowski, the Tenth Circuit held that (1) a New Mexico metropolitan court did not lack authority to issue a felony-related search warrant; (2) the search warrant was not "sufficiently federal" to require issuance in accordance with Fed. R. Crim. P.  41; (3) the affidavit in support of the search warrant, which relied in part on a confidential informant, provided probable cause for the warrant; and (4) Mr. Sadlowski did not present any evidence to support his request for a Franks hearing.

In United States v. Berg, the Tenth Circuit held that a Kansas Highway Patrol Trooper had reasonable suspicion to detain a driver following a traffic stop based on the trooper's belief that the driver had been driving in tandem with two "escort vehicles," and that his rental car was packed inconsistently with his statement to the trooper that he was moving.

In Donahue v. Wihongi, a Section 1983 case, the Tenth Circuit affirmed the district court's grant of immunity to officers who detained Dr. Donahue. The Court held that Dr. Donahue was detained for public intoxication after he approached officers for help following an altercation with a woman. What started as a consensual encounter became a detention after (1) Dr. Donahue twice denied being intoxicated; (2) the officers continued to question him in a "commanding" tone; and (3) the officers allowed the woman--but not Dr. Donahue--to leave; and (4) the officers told the Doctor that they needed his name and he refused. The Court quoted a Ninth Circuit case for the proposition that "[w]hen a citizen expresses his or her desire not to cooperate, continued questioning cannot be deemed consensual."

The Tenth Circuit also held that Dr. Donahue's detention was supported by reasonable suspicion that he was publicly intoxicated. That suspicion included the woman's report that he was "drunker than Cooter Brown," and the Doctor's agitation and admission that he had been drinking and had had an altercation with the woman.

Tenth Circuit Breviaries

Mon, 01/20/2020 - 19:50
Can a person "enter" the United States for purposes of unlawful entry under 8 U.S.C. § 1325(a)(1) when that person is under a form of official restraint? And does constant surveillance from the time a person walks across the border until her arrest count as official restraint?

Maybe, and no, answered the Tenth Circuit in United States v. Gaspar-Miguel

"For purposes of this appeal, we need not address the broader question of whether 'entry' under § 1325(a) requires freedom from official restraint. We conclude, as pertinent here, that continuous surveillance by border patrol agents, by itself, does not constitute official restraint."

5th Circuit really means it: this sentence is substantively reasonable

Thu, 01/16/2020 - 14:30
In United States v. Mathes, the Fifth Circuit held that the defendant's sentence is substantively unreasonable, for the second time. The defendant pleaded guilty to cocaine distribution. The government dismissed a felon-in-possession charge that would have carried a 15-year mandatory minimum. The government also filed a motion requesting a sentence reduction for the defendant's substantial assistance, which it called "extraordinary" and "at the risk of his life." At the first sentencing, the district court granted the substantial-assistance motion but then varied upward from the 70-to-87-month range to impose 210 months' imprisonment. The district court explained that the defendant got a disproportionate benefit from the dismissal of the firearms charge (even though the government said it dismissed the charge because it found evidence the defendant had not possessed a firearm, and said it would have moved for relief from the mandatory minimum under 18 U.S.C. § 3553(e) anyway). The Fifth Circuit vacated the sentence as substantively unreasonable, holding that since the dismissal didn't actually change the defendant's sentencing exposure, that fact did not support such a large upward variance.

At the resentencing, the district court imposed 160 months' imprisonment, less than the first sentence but still an upward variance. The district court stated that the variance was necessary to avoid unwarranted sentencing disparities, because the defendant's brother had been sentenced to 324 months for the same conduct. The Fifth Circuit held this sentence substantively unreasonable as well, because only unwarranted disparities need to be avoided. This defendant pleaded guilty and cooperated extensively with the government, and his brother did not. The disparity would have been warranted and is an improper basis for an upward variance.

So this defendant will get a third sentencing hearing and substantive unreasonableness review lives, at least occasionally.

Poverty Simulation this Friday in Lawrence, Kansas

Mon, 01/13/2020 - 11:22
Think you know what day-to-day existence is like for a low-income family? Test your knowledge and compassion at a Community Action Poverty Simulation.

A Poverty Simulation is a unique role-playing experience designed to help participants understand the strategies of a low-income family trying to survive, day to day, with a shortage of money and an abundance of stress. It is a simulation, not a game.

Please join us if you are able from 1:00 p.m. to 4:00 p.m. this Friday, January 17, 2020, at KU Law School in Lawrence, Kansas, for a Community Action Poverty Simulation presented by the Judge Hugh Means Inn of Court. Donations will be accepted to support local programs.

For more information, email ctheisen@barberemerson.com.

Tenth Circuit Breviaries

Sun, 01/12/2020 - 17:00
Last week at the Tenth Circuit:

Standard of proof at sentencing

The Tenth Circuit generally requires district courts to find sentencing facts by only a preponderance of evidence. But it has also "reserved the question of whether, in some extraordinary or dramatic case, due process might require a higher standard of proof." United States v. Olsen, 519 F.3d 1096, 1104-06 (10th Cir. 2008); accord United States v. Ray, 704 F.3d 1307, 1314 (10th Cir. 2013) (same; citing Olsen).

Last week, in United States v. Robertson, the Tenth Circuit withdrew that reservation, at least until the Supreme Court says otherwise: "The Supreme Court has not adopted a heightened standard of proof at sentencing for contested facts, thus we hold that the correct standard of proof in this case was a preponderance of the evidence. This issue has been foreclosed in this Circuit." The Court expressly discredited any statements to the contrary in Ray.

Standing silent at sentencing

In Robertson, the district court added 10 levels* to Mr. Robertson's total offense level after finding, over Mr. Robertson's objection, that he had pointed a gun at a police officer. The officer testified, but had credibility problems. In discussing the "serious problems" it had with the officer, the district court noted that it was "surprised" that Mr. Robertson hadn't testified "under oath" to contradict the officer. On appeal, the Tenth Circuit held that (1) any error in the judge's alleged reliance on Mr. Robertson's silence was unpreserved, and therefore subject to plain-error review; and (2) the judge's statements were ambiguous, and therefore couldn't be plain error. Judge Briscoe dissented, concluding that the district court plainly erred, and stating that she would reverse and remand for resentencing.

* This was done by combining a firearm enhancement, USSG § 2K2.1, with an enhancement for assaulting a law-enforcement officer, USSG § 3A1.2.

Relevant conduct

Is the ultimate determination of relevant conduct an issue of law, reviewed de novo on appeal, or an issue of fact reviewed only for clear error? Alas, we cannot say. In United States v. Garcia, the Tenth Circuit noted this "perplex[ing]" question, but chose not to answer it, holding instead that Mr. Garcia's relevant-conduct challenge relied on a subsidiary factual question, which was unquestionably reviewable only for clear error.

In Garcia, a 922(g) case, the Tenth Circuit found no error in the district court's treatment of Mr. Garcia's prior firearms possession (one year before his current offense conduct) as course-of-conduct relevant conduct. Read Garcia if you want a detailed analysis of the factors relevant to this analysis: similarity, regularity or repetition, and temporal proximity (but keep in mind that the analysis here is under plain-error review).

Substantive unreasonableness

Thinking about arguing on appeal that your client's above-guidelines sentence is substantively unreasonable? Just know that you have a long row to hoe. In Garcia, the Tenth Circuit rejected Mr. Garcia's substantive-reasonableness challenge to an upward variance of 39 months above the high end of his guidelines range. In affirming the variance, the Tenth Circuit held that it was supported by Mr. Garcia's personal history. The Tenth Circuit was unpersuaded by either Mr. Garcia's proffered statistics about median firearms sentences within the Tenth Circuit ("his argument plainly does not implicate the kind of disparities that § 3553(a)(6) seeks to avoid---that is, nationwide disparities"), or his national statistics ("Mr. Garcia does not place them in a meaningful 'context.'").

100-second delay during traffic stop is unreasonable

Thu, 01/09/2020 - 13:52
In Rodriguez v. United States, the Supreme Court held that the Fourth Amendment prohibits police officers from extending a traffic stop to investigate matters unrelated to the original purpose of the stop. While officers may investigate such matters simultaneous with routine traffic-stop activities like obtaining identification and registration, they may not "add time" to a stop to conduct any unrelated investigation (absent reasonable suspicion to do so).

In United States v. Brinson, No. CR-119-096 (S.D. Ga.), a Georgia district court recently applied Rodriguez and held that an officer's intentional 100-second delay in issuing a traffic ticket to ask about transporting drugs violated the Fourth Amendment. The stop was for a defective brake light. When checking for outstanding warrants, the officer discovered that the defendant had a prior drug conviction. So he suspended the process of writing a ticket to ask about possible drug activity. After a few questions, the defendant fairly quickly admitted that he had "weed" in the car. The court suppressed the evidence and statements, because the officer impermissibly added time to the stop to ask about drugs. "Even though only one minute and forty seconds elapsed from the moment Deputy Snyder exited his patrol car until Defendant admitted possession of marijuana, this unconstitutionally prolonged the traffic stop and exceeded its narrow purpose."

This opinion joins a few others, holding that even short detours into unrelated matters during a traffic stop are prohibited. See United States v. Clark and United States v. Campbell, where brief questioning about unrelated matters impermissibly extended each stop. (Good faith reliance on prior case law saved the stop in Campbell, but should have less force going forward now that Rodriguez is four years old).

Tenth Circuit Breviaries

Sun, 01/05/2020 - 17:00
Last week the Tenth Circuit decided United States v. Fields, an appeal from the district court's denial of 28 U.S.C. 2255 relief in a federal capital case.

The Tenth Circuit held that the district court should not have dismissed the 2255 petition without an evidentiary hearing on Mr. Fields's claim that counsel's failure to pursue and present mitigating organic-brain-injury evidence constituted ineffective assistance of counsel. Given issues of fact with respect to both the performance and prejudice prongs of Strickland, the district court should have granted a hearing.

The Tenth Circuit affirmed the district court's dismissal of Mr. Fields's other ineffective-assistance-of-counsel claims.

Dicta: a hierarchy

Thu, 01/02/2020 - 16:53

We know the nuances distinguishing dicta and holdings keep you awake at night, thrashing about in bed, your mind ablaze. But had you ever considered whether that dicta was emphatic? No, you hadn’t. Because why would you, until the Tenth Circuit’s recent decision in Padilla?
Sure, “[s]tatements and comments in an opinion concerning some rule of law or legal proposition not necessarily involved nor essential to determination of the case in hand,” are dicta, and don’t bind subsequent courts. United States v. Villarreal–Ortiz, 553 F.3d 1326, 1328 n.3 (10th Cir. 2009); Bates v. Dep't of Corrections, 81 F.3d 1008, 1011 (10th Cir. 1996). But what if some dicta is more important than other dicta? And how do you tell?
Three kinds of dicta reign supreme. First, the Tenth Circuit considers itself “bound by the Supreme Court's considered dicta almost as firmly as by the Court’s outright holdings[.]” United States v. Burkholder, 816 F.3d 607, 619 (10th Cir. 2016). Second, dicta in a state court decision concerning state law binds a federal court “if it appears to be a clear and unequivocal exposition of the law and is not in conflict with other decisions of that court.” Home Royalty Ass’n v. Stone, 199 F.2d 650, 655 (10th Cir. 1952).
And now we have a third entrant into the dicta hall of importance. The Tenth Circuit just held (albeit in an unpublished opinion) that “well-reasoned and emphatic dicta . . . will and should be afforded more weight by later panels than casual dicta.” United States v. Padilla, __ Fed. Appx. __, 2019 WL 5692530 at 6 (10th Cir. 2019), quoting United States v. Garcia, 413 F.3d 201, 232 n.2 (2d Cir. 2005) (Calabresi, J., concurring).
So what is “emphatic” dicta? The limited number of cases to examine that question say that “emphatic” dicta appears when the circuit court undertakes “a meticulous and conscientious effort” to “clarify the law,” even when that point of law is not decided in the cited case. United States v. Conradt, 2015 WL 480419 at 1 (S.D.N.Y. 2015).
How does this help you? When the government screams “DICTA,” holler back “EMPHATIC DICTA” and explain how the case you are citing attempted to settle the legal point you are arguing. We would continue to discuss why the emphatic dicta canon mirrors the ancient distinction between dictum and obiter dictum, see Abramowicz and Stearns, Defining Dicta, 57 Stan. L. Rev. 953, 1048 (March 2005), but you’ve been patient enough.
--Kirk Redmond

Tenth Circuit Breviaries

Sun, 12/29/2019 - 16:51
Last week at the Tenth Circuit:

Fourth Amendment

In case you were wondering, "an officer's gratuitous use of excessive force [here, a "rough ride" to the police station] against a fully compliant, restrained, and non-threatening misdemeanant arrestee is unreasonable---and therefore violates the Fourth Amendment." McCowan v. Morales (affirming district court's denial of qualified immunity).

USSG 4B1.2(b) career-offender drug predicate

In United States v. Faulkner, the Tenth Circuit held that the Oklahoma crime of endeavoring to manufacture a controlled substance "sweeps more broadly than the generic definition of attempt," and it was error for the district court to treat this crime as a career-offender predicate.

Unfortunately for Mr. Faulkner, his lawyer did not object to this error at sentencing. And thus he lost his appellate bid for resentencing because while the district court erred, the error was not plain.

18 U.S.C. 3663A restitution

A district court may not order restitution for losses related to, but not arising directly from, the defendant's offense(s) of conviction. And thus the defendant convicted of possessing/receiving/concealing 3 stolen firearms in United States v. Mendenhall could not be ordered to pay restitution to a pawn shop for losses related to his theft of dozens of other firearms.

Supervised release: grading violations under USSG 7B1.1

Want to know more about how violations of state law are graded in federal supervised-release-violation proceedings? Read United States v. Rodriguez.

Mississippi judge: ICE cannot detain immigrant during criminal prosecution

Thu, 12/26/2019 - 13:04
In August 2019, ICE raided six chicken-processing plants in Mississippi and detained hundreds of people, including Ms. Baltazar-Sebastian. Two weeks later, she was indicted for misuse of a Social Security number. A federal magistrate judge found that she was not a danger or a flight risk, and released her on bond. But Ms. Baltazar-Sebastian was not released. ICE immediately took her into custody and transferred her to a detention facility in Louisiana for removal proceedings. Motions were filed. The United States asked for reconsideration. ICE got involved. Main Justice got involved.

Judge Carlton Reeves, a judge in the Southern District of Mississippi, held that ICE's detention of Ms. Baltazar-Sebastian violates the release order and has no legal basis. He rejected any argument that the Bail Reform Act and immigration laws were in conflict: the Bail Reform Act requires release if a person is not a danger or a flight risk, and the immigration statute doesn't require otherwise. Judge Reeves rejected the United States' argument that an ICE detainer is an "exception" that creates different rules. In Ms. Baltazar-Sebastian's circumstances (no aggravated felony, no prior removal), immigration detention is permissive (ICE detainer or no), and allows for detention only for removal purposes. But the detention can't be for removal purposes because immigration regulations don't allow for removal during a criminal prosecution. (Border defense lawyers will already know that ICE has a different interpretation of these regulations). Judge Reeves also distinguishes or rejects decisions from circuit courts that have allowed alien-defendants to be detained by ICE, despite a release order in a parallel criminal prosecution.

There is a lot in this opinion. It is worth a read if you come across this situation, as many of us will. Ramped-up immigration enforcement leads not just to more criminal cases, but to increasingly complex difficulties stemming from parallel criminal prosecutions and removal proceedings.

Tenth Circuit Breviaries

Sun, 12/22/2019 - 16:30
Last week at the Tenth Circuit:

Evidentiary issues
In United States v. Brewington, the Tenth Circuit rejected claims that the district court erroneously excluded emails (some were never offered—listing them in a pretrial report wasn’t enough—and the exclusion of others was harmless), and erroneously limited a witness’s testimony (the witness testified, and the limits on her testimony were reasonable).
Jury instructions on lesser-included offenses
In United States v. Waugh, a drug-distribution case, the Tenth Circuit rejected Mr. Waugh’s claim that the district court should have instructed his jury on the lesser included offense of simple possession. The Court based its decision on “the substantial evidence supporting a distribution theory” and “the complete lack of evidence supporting a personal use theory.”  
Which sentencing guidelines again?
To avoid an ex post facto violation, the district court must apply the guideline version in effect when the offense was committed if a newer version would increase the defendant’s sentencing range. The controlling date is when the offense ended. USSG § 1B1.11 cmt. n.2. In Brewington, the district court applied a post-offense amendment that increased Mr. Brewington’s guidelines range. This was plain error necessitating a remand for resentencing.
Obstruction of justice, USSG § 3C1.1
So your client wants to testify at trial. What advice do you give? Whatever else, that advice should include a warning that if the client testifies and is convicted, the district court might enhance the client’s sentence for obstruction of justice if the district court concludes that the client willfully gave false testimony about a material matter. That was the fate of the defendant in United States v. Fernandez-Barron, a fate upheld by the Tenth Circuit in a lengthy decision discussing both the willfulness and materiality prongs of obstruction.
28 U.S.C. § 2241
Since 2014, Congress has passed an appropriations rider every year stating that no appropriated funds may be used by the Justice Department to prevent states from implementing their own laws legalizing acts relating to medical marijuana. Aaron Sandusky was convicted in federal court of trafficking marijuana. He filed a habeas petition under 28 U.S.C. § 2241 arguing that his offense conduct was compliant with California state law, and that, during any time that a marijuana appropriations rider is in effect, the BOP cannot expend funds to incarcerate him. The district court dismissed, holding that § 2241 was not the right vehicle for the claim.
The Tenth Circuit reversed. Because Mr. Sandusky challenged only the executionof his sentence (not the validity of his conviction or sentence), § 2241 was the right vehicle. The case now goes back to the district court for proceedings on the merits of the appropriations-rider claim—an issue that the Tenth Circuit points out will be one of first impression.

Tenth Circuit Breviaries

Sun, 12/15/2019 - 16:57
It's been a quiet couple of weeks at the Tenth Circuit. The Court has not published any new decisions in criminal appeals. But last week it issued an order publishing its previously unpublished opinion in United States v. Fagatele. In Fagatele, the Court held that Utah third-degree aggravated assault is a crime of violence under USSG 4B1.2(a)'s elements clause.

The Case of the Polite Bank Robber

Wed, 12/04/2019 - 13:00
Bank robbers get a two-level sentencing enhancement for making a death threat. But all bank robberies involve some explicit or implicit threat of harm. So, says the 11th Circuit, we must distinguish between "less bad" bank robberies and worse ones when we decide who qualifies for the death-threat enhancement. This unarmed robber walked into two different banks, gave the tellers notes asking for money and telling them he "had kids to feed," and then "bargained pleasantly" for the money. Even though his notes stated that "no one would get hurt" if the tellers gave him the money, he never stated or implied that he had a weapon, and the tellers did not act as if they feared him. The court held that his actions would not have caused a reasonable person to fear for their life, and he should not have received the enhancement. 

In fact, in this case the government agreed that the robber should not have received the death-threat enhancement. The 11th Circuit appointed a lawyer as amicus to defend the district court's ruling.