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Kirk Redmondhttp://www.blogger.com/profile/05149425706408433721noreply@blogger.comBlogger649125
Updated: 34 min 24 sec ago

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.

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