The Federal Criminal Appeals Blog

People are social animals. We teach each other. We learn from each other. We judge each other.

Perhaps dozens of times a day we make evaluations about other people based on how they look at us and what they say to us. We make determinations about other people based on race and class and whether we think another person is "one of us" - in all the ways that a person can be one of us. Maybe pheromones play a role in how we evaluate each other. But these small judgments we make in our interactions with others shape how we treat each other in ways large and small.

None of this goes away when a judge puts on a robe and imposes a sentence on a person who has been convicted of a crime.

A federal district judge will know generally about the crime - the judge either sat through a trial and heard the testimony, or read a statement of offense in a plea agreement - and will know from the presentence report about the person being sentenced.

But these background facts don't give the judge the same human knowledge about the person that a face-to-face interaction does. Which is why whether the person speaks at his sentencing - and how he acts if he does speak - can be very important.

Rule 32 of the Federal Rules of Criminal Procedure give a person being sentenced a right to talk to the judge about what sentence the court should impose.

The right to talk to the judge before the sentence is imposed was given a very muscular reading by the Eleventh Circuit in United States v. Perez.

Mr. Perez, along with a number of others, was convicted of conspiring to rob a check cashing store, as well as a drug stash house that did not, in fact, exist. The federal government, in an apparent effort to bring counter-terrorism tactics to the street, has started finding people who may be interested in committing a crime, then arranging with a confidential informant to have them find some fake entity to conspire to rob. It's easier to catch fake crime than real crime, I suppose. (For more on these kinds of cases, please see this post at the Ninth Circuit blog).

At sentencing, the sentencing court said to Mr. Perez's counsel "will the defendant be allocating?" Mr. Perez's lawyer conferred with his client then told the court, "No, Your Honor. He doesn't wish to address the Court." Mr. Perez did not, then, address the court.

The Eleventh Circuit found that this violated Mr. Perez's right to present information to the court. The court of appeals noted that:

On a number of occasions, "[w]e have explicitly held that the requirement of Rule 32[(i)(4)(A)(ii)] is not satisfied when the court does not address the defendant personally concerning the defendant's desire to allocute but instead addresses defendant's counsel only."

In light of that, the court held that it was not convinced that Mr. Perez knew that he had a right to speak to the sentencing judge.

Because the right to allocute is fundamental, the Eleventh Circuit reversed, even though no one objected at the time.

Waxing poetic about the importance of allocution, the court of appeals said

The right of allocution provides a defendant "an opportunity to plead personally to the court for leniency in his sentence by stating mitigating factors and to have that plea considered by the court in determining the appropriate sentence." United States v.Tamayo, 80 F.3d 1514, 1518 (11th Cir. 1996). "As early as 1689, it was recognized that the court's failure to ask the defendant if he had anything to say before sentence was imposed required reversal." Green v. United States, 365 U.S. 301, 304, 81 S. Ct. 653, 655, 5 L. Ed. 2d 670 (1961) (Frankfurter, J., plurality opinion). Although criminal procedures have progressed significantly since the seventeenth century, "[n]one of these modern innovations lessens the need for the defendant, personally, to have the opportunity to present to the court his plea in mitigation." Id. Allocution continues to "ensure that sentencing reflects individualized circumstances," United States v. De Alba Pagan, 33 F.3d 125, 129 (1st Cir. 1994) (citing United States v. Barnes, 948 F.2d 325, 328 (7th Cir. 1991), while maximizing the "perceived equity of the process." Id. (quoting Barnes, 948 F.2d at 328). Consequently, a defendant's right of allocution, which is codified in Federal Rule of Criminal Procedure 32, remains firmly entrenched in our criminal jurisprudence.

And so, back for resentencing Mr. Perez will go.

The federal government has powerful tools to keep a person from exercising his constitutional right to go to trial - like crushingly long mandatory minimum sentences.

An aside to illustrate the point

The government's use of mandatory minimums reminds me of the plea colloquy of a particularly honest client of mine.

The judge asked my client "Has anyone threatened you to get you to plead guilty?"

My client said yes.

The judge, clearly taken aback, and, frankly, looking at me, said "Who threatened you? How?"

My client pointed at the prosecutor and said "They said I'll get mandatory life if I don't take a plea."

The judge, relieved, said "Oh, ok, but no one threatened you with any violence or anything, right?"

My client said right, and the hearing moved on.

I think my client's honesty may have faded at the end of the exchange. What the government was saying, in essence, is that he was being threatened with living in a cage until he dies. If he tries to escape, people will force him back into that cage.

What threat of violence to him could be more severe than that, shy of a threat of death? Yet the judge determined that the plea wasn't coerced.

How to Avoid A Mandatory Minimum

There are, generally, two ways to avoid a mandatory minimum sentence. The first is by helping the government put someone in prison. The other is called the "safety valve."

The "safety valve" is set out in 18 U.S.C. § 3553(f). It says, in essence, that if a person has little prior involvement with the criminal justice system, didn't lead the criminal enterprise that he's being sentenced for, didn't use a gun, and no one got hurt, that person can be sentenced as though the mandatory minimum didn't exist. With one additional catch.

The person has to truthfully tell the government everything that he did in connection with the crime he's being sentenced for.

If a person tries to help the government, the government will require that he gives up his right to a trial. Safety valve works a little differently.

Safety Valve and Trial

By its terms, the safety valve provision can kick in to help someone who was convicted at trial, rather than pleading guilty.

The Eighth Circuit's case of United States v. Honea shows exactly when and why safety valve should be used after a trial.

Never Let Your Kids Use Your Water

Mr. Honea had some land in Arkansas. It was next to some land that was untended, but owned by Deltic Timber.

Mr. Honea's daughter, Paula, was using Mr. Honea's land to get access to the untended Deltic Timber land. On that land, she was running a marijuana growth operation. Two guys slept on the land in tents, tending the plants. Paula ran water hoses from Mr. Honea's house to the marijuana operation, using massive amounts of water. Paula's husband, Mr. Honea's son-in-law, also helped with the operation.

Everyone except for Mr. Honea flipped and testified against him. He was charged with conspiracy to grow more than 1,000 marijuana plants, aiding and abetting in the possession with intent to distribute between 100 and 1,000 marijuana plants, and aiding and abetting the manufacture of more than 1,000 marijuana plants.

These charges carry a mandatory minimum sentence of ten years.

Before trial, when everyone was cooperating with the government, Mr. Honea's son-in-law wrote to Mr. Honea. He wrote:

Don't go to trial, just take a plea. You're a smart man, I know you'll make the right decision.

Mr. Honea's Trial

At trial, Mr. Honea took the stand. He said he knew nothing about the marijuana operation. He knew his son-in-law was harvesting rocks to resell to construction companies - which made sense to him since his son-in-law was a contractor - but he knew nothing about marijuana on the property.

Mr. Honea was convicted of aiding and abetting in the manufacture of more than 1,000 marijuana plants. He was acquitted of the other two counts.

Mr. Honea faced a mandatory minimum sentence of ten years.

The Judge Gets Concerned

After trial, and before sentencing, the trial judge was worried. He sent a letter to counsel for Mr. Honea and the government. As the court of appeals described it:

the district court sent the parties a letter order "to express [its] concern about the application of the statutory mandatory minimum sentence in this case and to ask whether Mr. Honea might qualify for the 'safety valve.'" The district court noted that Honea was "acquitted . . . on 2 of the 3 counts," including "the most serious charge--conspiracy to manufacture marijuana (Count 1)[,] as well as the charge of aiding and abetting the possession with intent to distribute marijuana (Count 3)." The court surmised that Honea's conviction for "aiding and abetting the manufacture of marijuana (Count 2)" was "based principally on the jury's finding that he permitted the other Defendants to cross his property to access the adjoining land where the grow operation was located and also provided them access to his water supply." According to the court, "no competent evidence" existed that "Honea profited in any way from the manufacture or distribution of the marijuana." The court also cited Honea's lack of a "criminal record.

The government responded that Mr. Honea was not safety valve eligible, because he had not met with them to disclose his involvement with the operation.

That was remedied - Mr. Honea met with the government and said that he didn't ask questions, but should have, and didn't know about any marijuana operation.

This was good enough for the court, but not for the government. The government argued that Mr. Honea's statement was inconsistent with the jury's verdict. As a result, the government thought Mr. Honea should not be eligible for a safety valve reduction.

The district court disagreed, sentencing Mr. Honea to the time he had originally spent in jail - 20 days.

The government appealed.

The Eighth Circuit affirmed, finding that there was no conflict between the jury's verdict and the safety valve proffer.

For a person convicted of a crime, winning in the Supreme Court of the United States can be a mixed bag.

Sometimes it works out well. Clarence Gideon was acquitted when he was retried, this time with the aid of a defense lawyer. He was also, of course, lovingly portrayed by Henry Fonda in film, and is now perhaps the most often-invoked indigent of the Twentieth Century.

On the other hand, Ernesto Miranda, the man who gave us Miranda warnings, was convicted on retrial after his statement was suppressed. He served 11 years in prison for rape.

Freddie Booker's case turned federal criminal sentencing on its head. Mr. Booker was resentenced after his case rendered the federal sentencing guidelines advisory - he was given exactly the same sentence with the advisory guidelines as with the mandatory ones.

Perhaps that was a harbinger.

Alejandra Tapia won her case in the United States Supreme Court last term. And, happily, yesterday, she found that she'll get some relief from that win.

She was convicted at trial of bringing two undocumented people into the country for financial gain, and of bail jumping - apparently Ms. Tapia did not make it to court for one of the hearings in her case.

She was sentenced to 51 months, the high-end of the applicable guidelines range. The sentencing court said that she had a drug problem and needed treatment while in prison. The sentence he imposed was to help her get that treatment.

Ms. Tapia appealed the sentencing judge's reliance on her need for drug treatment, but the Ninth Circuit affirmed. Ms. Tapia took her case all the way to the Supreme Court. In the Supreme Court, she won.

There, in Tapia v. United States, the Court held that a district judge cannot increase a sentence on a person in order to provide more time in prison to rehabilitate the person.

(Judge Posner has already provided district court judges with a roadmap for how to circumvent Tapia.)

The Supreme Court remanded to the Ninth Circuit to determine whether Ms. Tapia is entitled to relief based on its holding.

On remand from the Supreme Court Ninth Circuit held that Ms. Tapia is entitled to resentencing in United States v Tapia. The district court's consideration of her drug history and need for drug treatment was plain error.

As the Ninth Circuit said, in determining that Ms. Tapia was negatively effected by the sentencing judge's findings:

There is little reason to think that the district judge did not mean what he said in sentencing Tapia. He stated that "the need to provide treatment" was one of the considerations that "affect[ed]" the length of the sentence he imposed. We take him at his word, and hold that Tapia has shown that there is a "reasonable probability that [she] would have received a different sentence" but for the district judge's impermissible consideration of this factor.

So, back to the district court for resentencing for Ms. Tapia. Here's to hoping she avoids Mr. Miranda and Mr. Booker's fates and receives less than her prior 51 months.

Sometimes being a defense lawyer in federal court is a matter of playing for dropped balls. In some cases, if everything goes the way it looks like it should for the government, there's not much chance of a good result. But, mistakes are often made. If the right mistakes happen, things can look different quickly.

The appeal in the First Circuit's recent opinion in United States v. Ortiz shows the importance of playing for a dropped ball.

A Night in May

According to a statement of facts that Mr. Ortiz signed, in May of 2007, he and his friends decided to try to steal a car. The car was occupied. The men in the car got out, and had a fistfight with Mr. Ortiz and his friends. When the fight was over, the men in the car got back in the car and tried to drive away.

One of Mr. Ortiz's friends blocked the way of the car. People yelled. Mr. Ortiz shot into the car, killing the driver.

Mr. Ortiz was charged with four crimes: (1) conspiracy to commit carjacking; (2) car jacking; (3) use of a firearm in connection with a crime of violence; and (4) causing the death of a person through the use of a firearm. [FN1]

Mr. Ortiz Pleads Guilty

Mr. Ortiz worked out a plea to Count Three - use of a firearm in connection with a crime of violence under 18 U.S.C. 924(c). Because a gun was discharged, Count Three carries a mandatory minimum term of ten years.

As a part of the plea agreement, Mr. Ortiz and the government agreed that they would both ask for the ten year sentence be imposed. At the plea hearing, the judge told Mr. Ortiz that Count Three carried a mandatory minimum ten year sentence.

In his plea, Mr. Ortiz also waived his right to appeal.

A charge under 924(c) does not have a maximum penalty established by statute - rather, courts have construed it as having a maximum sentence of life. [FN2] This fact, however, was not mentioned in Mr. Ortiz's plea agreement paperwork. It was also not addressed at his plea hearing - which violates Rule 11 of the Federal Rules of Criminal Procedure.

Mr. Ortiz Has a Presentence Report

Mr. Ortiz, like every other person who is convicted in federal court, was the subject of a presentence report. The presentence report accurately stated that the maximum penalty for his count of conviction was life in prison.

At his sentencing hearing, though, the district judge neglected to ask whether Mr. Ortiz had read the presentence report.

Mr. Ortiz is sentenced

Expecting to receive a sentence of ten years in prison, Mr. Ortiz was surprised when the court imposed a sentence of 30 years.

He was further surprised when one of his friends from the night of the shooting, beat two counts at trial and received a sentence of only 15 years.

Mr. Ortiz tried to withdraw his plea after he was sentenced because his sentence was three times the amount of he expected to receive. The district court denied the motion. Mr. Ortiz appealed.

The Appeal

The government argued that Mr. Ortiz could not bring an appeal, because he waived that right in his plea agreement. The government also argued that the original plea should stand.

The court of appeals, though, thought differently. It remanded, since Mr. Ortiz was not aware that by pleading guilty he could be sentenced to life in prison.

The court remanded, with instructions to vacate the conviction.

As an interesting postscript, the court noted that Mr. Ortiz, if re-convicted, could, of course, receive up to life in prison. Mr. Ortiz's counsel presented, during the course of the appeal, a statement that Mr. Ortiz was aware of that risk, and wanted to proceed with the appeal anyway.

Here's to hoping Mr. Ortiz doesn't do worse on remand.

[FN1] The opinion describes these each as aiding and abetting charges to the substantive counts, then, bizarrely, in footnote one, takes the government to task for charging these as, e.g., a violation of "18 U.S.C. § 2119(3) and 2." (emphasis in original). The footnote then continues "Because it is unclear what statutory provision "and 2" refers to in each instance, we have omitted that language here."

I hate to, in essence, say "duh" to a court of appeals, but, I think it's pretty obvious that "and 2" refers to 18 U.S.C. § 2, the statutory provision that sets out aiding and abetting liability.

I'm no fan of defending the government, but this is an odd attack based on a blindingly obvious misunderstanding by the opinion's author.

[FN2] This quirk leads to a delightfully paradoxical turn of phrase - the statutory maximum for a violation of 18 U.S.C. § 924(c) is not set by statute.

In a classic Simpsons episode, Homer Simpson, as a young person, is excluded from a club of his peers - the club is called the "No Homers Club." Homer complains, noting that there was a Homer inside the clubhouse.

He's told - "It says no Homers. We're allowed to have one." (Incidentally, the "No Homers Club" is now the name of many Simpsons fan clubs).

Club rules tend, I think, to be silly. The Seventh Circuit's recent opinion in United States v. Loughry however, meant the difference in whether a child pornography conviction stands can depend on the rules of a private "club."

Robert Loughry was accused of being an administrator of an online club that had very rigid rules. The club, called the "Cache," existed to allow users access to a particular kind of child pornography. Other kinds were explicitly prohibited.

As the Seventh Circuit explained it,

Only "lascivious exhibition" pornography, which included the exhibition of girls' genitals, was permitted on the Cache. Images depicting sexual contact or other sexually explicit material were prohibited.

Mr. Loughry was accused of distribution of child pornography, advertising child pornography, and related conspiracy counts. He was not accused of possession of child pornography.

The government introduced evidence of the images found at the Cache. As the Seventh Circuit explained,

The site was divided into sub-forums and topic areas. There was a non-nude gallery area and a nude gallery area, which was subdivided by ages into "18 and over nude," "13-18 nude," and "under 13 nude" categories. The Cache's rules prohibited posting any images depicting sexual contact, masturbation, penetration, boys, or men. According to several witnesses, the purpose of the Cache was to provide its members with access to child pornography consisting of the lascivious exhibition of the genitals of minor girls.

During the trial, the government introduced evidence of Mr. Loughry exercising the kind of role in the Cache that one would expect an administrator to exercise - he promoted members, he kicked them out, and he created new member accounts.

The last government witness, though, introduced evidence of significant hard-core child pornography found on Mr. Loughry's computer. It was the kind of child pornography that would not have been allowed in the Cache. It's described in the opinion, if you want to know more.

Mr. Loughry was convicted and sentenced to 30 years in prison.

On appeal, he challenged the district court's decision to admit the hard-core child pornography from his computer as unduly prejudicial under Rule 403 of the Federal Rules of Evidence. Again, keep in mind that Mr. Loughry was not charged with the crime of possessing the hard-core child pornography on his computer.

The court of appeals took the district court to task for not looking at the hard-core child pornography before ruling on the admissibility question. Because the trial judge didn't look at that evidence, the court of appeals reasoned, that judge couldn't have made an informed decision about how prejudicial it was.

As the court of appeals said it,

The challenged videos include the kind of highly reprehensible and offensive content that might lead a jury to convict because it thinks that the defendant is a bad person and deserves punishment, regardless of whether the defendant committed the charged crime. Given the inflammatory nature of the evidence, the district court needed to know what was in the photographs and videos in order for it to properly exercise its discretion under Rule 403. Without looking at the videos for itself, the court could not have fully assessed the potential prejudice to Loughry and weighed it against the evidence's probative value.

Describing the kind of hard core child pornography that was shown, the court of appeals determined that it was prejudicial - and that the prejudice outweighed the value of admitting it, noting,

Such displays have a strong tendency to produce intense disgust.

The Seventh Circuit then found that the judge's error was not harmless, and reversed and remanded the case.

Child pornography cases are hard, and it is challenging to make the kinds of distinctions that the Seventh Circuit made here. Good on them for doing this work though, even though it's hard.

Wow, this blog is one of the ABA Journal's 100 law blogs (or "blawgs") on the 2011 ABA Journal Blawg 100!

Thanks very much to the ABA Journal for the nod!

Here's a quote from the editor of the ABA Journal about the Blawg 100:

"Blogging has become an important, even vital, source of information, education, entertainment and inspiration in the legal community. Whether written by practicing lawyers, law students, judges or law professors, blawgs are becoming more bold, more sophisticated and more integrated into the everyday experience of the profession," said Allen Pusey, editor and publisher of the ABA Journal. "And choosing just 100 of the best from our directory of 3,500 legal blogs is becoming an increasingly daunting task."

As in years past, they're taking votes for best blog in a number of categories. If you'd like, you can vote for this blog here, or by clicking the big shiny picture to the left.

Unsurprisingly, you will find this blog nominated in the "Criminal Justice" category.

It has been a good year for defendants and the Interstate Agreement on Detainers.

A few months ago, the First Circuit held that the government cannot request a writ from a district court to bring a person in state custody to federal custody if they have already requested the person's transfer under the Interstate Agreement on Detainers - after the governor of the state told them that he was denying the federal request.

Now, the Sixth Circuit* orders that an indictment be dismissed with prejudice under the Sixth Amendment's Speedy Trial guarantee because the government botched a request under the Interstate Agreement on Detainers. The case is United States v. Ferreira.

Mr. Ferreira was detained in a state institution in Bartow County, Georgia on September 13, 2005. That very same day he was indicted in federal court in Tennessee for conspiracy to distribute methamphetamine.

The federal prosecutor asked the district court for a writ directing Mr. Ferreira to be brought to federal court on October 19.

On October 12, the government brought a superseding indictment against Mr. Ferreira and, again, requested a writ for his appearance on October 21. On October 21, the district court granted the requested writ. (it isn't clear what happened with the October 12 writ request).

Though, earlier, the U.S. Marshals service told the U.S. Attorney's Office that Mr. Ferreira had been moved to facilities in Cobb County, Georgia ("Low on taxes, Big on business"). The U.S. Attorney's Office "misplaced" this notification. The writ was directed to Bartow County.

Though the opinion doesn't say it, one can presume that Bartow County did just about exactly nothing when given a writ for a person who was not in their custody.

The U.S. Marshals service lodged detainers on Mr. Ferreira.

Time passed.

Two years later, on September 6, 2007, Mr. Ferreira filed a motion for appointment of counsel and asked for a Speedy Trial.

More time passed.

In July 2008, Mr. Ferreira filed, on his own, a motion to dismiss the indictment for speedy trial violations.**

Later that month, the U.S. Attorney's Office filed another request for a writ to have him brought to federal court. This one was successful - he was brought, received a lawyer, and his lawyer moved to dismiss the indictment. The government conceded that it did not comply with the Interstate Agreement on Detainers.

Happily, the district court granted the motion to dismiss. Unhappily for Mr. Ferreira, it did so without prejudice - meaning he could be reindicted.

He was, and pled guilty with the ability to raise the Speedy Trial issues.

The Sixth Circuit found that Mr. Ferreira's constitutional Speedy Trial rights were violated. Some of the reasons caused no trouble for the court - the court of appeals found that he clearly wanted a speedy trial, the government's conduct in delaying when he came into federal court was the result of gross negligence, and the delay was meaningful.

The only real question was whether Mr. Ferreira was prejudiced. Here, the court of appeals found that his ability to develop a defense was compromised without him having to articulate a specific way in which that ability suffered.

The court held that:

He argues on appeal, as he did in the district court, that the passage of time generally impaired his defense by causing the evidence to go stale. The Sixth Circuit has recognized that "extreme" delays may, on their own, "give rise to a strong presumption of evidentiary . . . "When a defendant is unable to articulate the harm caused by delay, the reason for the delay . . . will be used to determine whether the defendant was presumptively prejudiced." United States v. Mundt, 29 F.3d 233, 236 (6th Cir. 1994). Where the delay has been caused by negligence, "our toleration of such negligence varies inversely with its protractedness." Doggett, 505 U.S. at 657.

Thus, even though Mr. Ferreira was unable to point to a particular thing that would have been better for his defense if he'd been brought into federal court sooner, because the delay was caused by the government and was lengthy, he didn't have to.

* The only Circuit without an RSS feed for its opinions.

** A detainer can seriously mess someone in custody up. They lose the right to many privileges and programs in custody, including an ability to get work release or even early release. Folks in prison have a many legitimate reasons to want to get out from under a detainer.

The Wrong Way To Think About Punishment

When I meet people at a cocktail party, or talk to kids of elementary-school age, and they learn I'm a federal criminal defense lawyer, I'm often asked something like, "How much time do you get for bank robbery?" or, "What's the punishment for mortgage fraud?"

The assumption is that there is a menu of punishments for crimes - if you do X, you get Y.

There is a version of this that is a bit more fine grained. It isn't a question of whether you commit mortgage fraud, but of how much money you take from the fraud. If you do X, with Y harm, you get Z.

Some bank robberies are worse than others. "What's the punishment for committing one of the bad ones?" the guy at the cocktail party may ask.

Looking at the federal sentencing guidelines, you can see the fullest expression of this more refined view. The guidelines are a loving catalog of how bad each crime is, considering each feature and sub-feature of the criminal conduct. And there's a chart at the end of the book that will tell you how much time you get for each.

This is, I think, the wrong way to think about punishment.

The Right Way To Think About Punishment

Happily, the Third Circuit recently explained the right way to think about punishment (the quotations are from the Supreme Court's recent opinion in Pepper) in United States v. Salinas-Cortez:

Appropriate sentences can only be imposed when sentencing courts "consider the widest possible breadth of information about a defendant." Id. at 1240. It is only then that we can "ensure[] that the punishment will suit not merely the offense but the individual defendant." Id. As we have previously explained, the now advisory Guideline range is but one of many factors that must be considered if a court is to properly impose a sentence that is tailored to the offender rather than one that focuses only on the offense.

It is remarkably difficult to get a federal prosecutor to ask for a sentence below the federal sentencing guidelines. Some offices have a blanket policy against such requests. Others simply don't do them. The effect is that when a person is punished, his crime overshadows who he is as a person.

(For a nice discussion of the role prosecutors play in this, see this piece at Main Justice from Mary Price at Families Against Mandatory Minimums.)

The Third Circuit explained,

It is only by ensuring that the individual circumstances of the defendant are not obliterated by the offense that an individual's potential to successfully rejoin society is maximized and the interest of public safety advanced. Thus, "[i]t has been uniform and constant in the federal judicial tradition for the sentencing judge to consider every convicted person as an individual and every case as a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and the punishment to ensue." Koon v. United States, 518 U.S. 81, 113 (1996). This bedrock principle predates enactment of the Guidelines.

It's a beautiful sentiment in Koon, that every criminal case is a reflection of our shared humanity and the ways in which humans can falter morally.

It's also a view rejected by the sentencing guidelines. Chapter 5H. Chapter 5H starts with a discussion of how much of what matters to a person is either a prohibited characteristic or not ordinarily relevant to sentencing.

Admittedly, Congress has required that the sentencing guidelines take this view (see 28 U.S.C. 994(d) and (d)). Still, it's wholly inconsistent with the view the Supreme Court expressed in Koon and reaffirmed in Pepper, that sentencing should rely, fundamentally, on a consideration of who the person is who committed the offense.

Mr. Salinas-Cortez

Mr. Salinas-Cortez was sentenced to 156 months in a federal prison after he was convicted of playing a role in a cocaine distribution conspiracy. He appealed, arguing that the district court did not adequately consider his argument that he was a minor player in the conspiracy.

The Third Circuit remanded the case for the district court to more fully consider Mr. Salinas-Cortez's argument that he was a minor player, and should receive a lower sentencing guidelines range under U.S.S.G. § 3B1.2.

The district court, on remand, considered Mr. Salinas-Cortez's argument, then rejected it. Mr. Salinas-Cortez argued that he had made strides toward rehabilitating himself. The district court did not believe that it had the authority to consider Mr. Salinas-Cortez's work to make himself a better person. The court imposed, again, a sentence of 156 months.

A week later, the Supreme Court decided Pepper, which holds that a district court can and should consider rehabilitation when imposing a sentence after remand.

The Third Circuit, therefore, remanded for the district court to resentence Mr. Salinas-Cortez in light of his rehabilitation after his offense.

What's the point of prosecuting crime? What's the point of putting people in prison?

Surely, in any well-functioning society - let alone any well-functioning democracy - there are a number of good reasons for prosecuting crime. There are also some that are not as obviously good.

Prosecuting crime prevents the people who commit crimes from being in a position to commit further crimes. Specific deterrence - deterring the specific person - makes sense as a function of sentencing.

Prosecuting people lets other people who are considering committing a crime know that if they are caught they will go to prison. If people fear prison, they may act in a way to avoid it, which means there may be less crime.

Prosecuting crime provides a sense to victims of a crime that what happened to them is recognized as wrong. There's likely some value to society to having moral evaluations have force.

At the same time, each prosecution and conviction also creates a stat for the law enforcement agents, law enforcement agencies, and prosecutors involved. They can collect these stats and show them to their bosses, or to Congress. The IRS's criminal agents had X number of convictions per agent against the FBI's Y per agent - perhaps the IRS is a more effective law enforcement agency.

Stat based evaluations do, however, make it awfully hard to walk away from a case once labor has been invested in it.

Convictions also let prosecutors put out press releases, telling our good citizens that work is being done (and who is doing the work). Especially if the press release doesn't reveal any reasons not to bring a case - like that it fails to serve many of the other ends of prosecution - the community will celebrate the prosecutor('s efforts).

I invite you to think about these reasons for prosecuting crime when you think about the Seventh Circuit's recent case of United States v. Robertson.

Meet The Robertsons

Henry and Elizabeth Robertson were like many other couples. She worked as a pediatric nurse. He worked as a cable installer.

Many couples have hobbies that they enjoy for a time, then stop. I recall my wife and I went through a period where we played Mancala relentlessly. It lasted perhaps two years. Then we set the game aside.

The Robertsons didn't have Mancala - instead, for a period of time in the 1990's, they had a real estate company in Chicago. Using that company, the Robertsons defrauded a number of lenders out of $700,000. Eventually, the company collapsed, the Robertsons went bankrupt, and life moved on.

The weren't charged with a crime at that point. Elizabeth continued working as a pediatric nurse. Henry kept installing cable television. The coached their kids soccer teams. Henry was elected block president to help keep their neighborhood crime free. Two of their kids went to college. One went into the military.

The Skies Darken

One day before the ten-year statute of limitations on bank fraud ran, the Robertsons were charged with bank and wire fraud for the real estate fraud.

They pled guilty.

The Sentencing Hearing

The Robertsons argued that the district court should consider and give more weight to the Robertsons conduct after the mortgage scam ended. They had disavowed their prior way of life. They gave back to others and to their community. They were, in many meaningful ways, very different people than when they had originally been sentenced.

The government even generously acknowledged that,

"over a 'relatively significant amount of time,' the Robertsons had 'demonstrate[d] to the Court, to society, that they can stay out of trouble.'

The sentencing judge didn't find this conversation interesting, apparently. He talked about the Robertsons' lack of criminal history, then he sentenced Henry Robertson to 63 months in prison - just over 5 years. He sentenced Elizabeth Robertson to 41 months - or three and a half years.

The Seventh Circuit Reverses

The Seventh Circuit did not approve of how the district court approached the Robertsons' rehabilitation.

First, the court of appeals noted that how a person lives his life after a crime is committed is incredibly important to what kind of sentence he should receive, particularly under Gall and Pepper, recent Supreme Court decisions:

The power of evidence of self-rehabilitation was evident in Gall, where the Supreme Court noted that it was reasonable for the district court to attach "great weight" to a defendant's decision to change his life and withdraw from a drug distribution conspiracy: "Compared to a case where the offender's rehabilitation occurred after he was charged with a crime, the District Court here had greater justification for believing [the defendant's] turnaround was genuine, as distinct from a transparent attempt to build a mitigation case." 552 U.S. at 57. Such self-motivated rehabilitation "lends strong support to the conclusion that imprisonment [is] not necessary to deter [a defendant] from engaging in future criminal conduct or to protect the public from his future criminal acts." Id. at 59.

The court of appeals faulted the district court for not meaningfully discussing these rehabilitative efforts. As the court held,

Substantial and reliable evidence of genuine rehabilitation presents a non-frivolous argument for imposing a sentence below the Guideline range. See Pepper, 131 S. Ct. at 1235; Gall, 552 U.S. at 57. Such arguments must be properly addressed and weighed by the sentencing court. A sentencing court's consideration of a defendant's non-frivolous arguments in favor of mitigation certainly may be brief, but it must also be meaningful. As we explained in Cunningham: "Whenever a district judge is required to make a discretionary ruling that is subject to appellate review, we have to satisfy ourselves, before we can conclude that the judge did not abuse his discretion, that he exercised his discretion, that is, that he considered the factors relevant to that exercise." 429 F.3d at 679. Here, we cannot determine whether the sentencing judge abused his discretion by, for example, overemphasizing the seriousness of the Robertsons' offense or Henry's criminal history or underemphasizing their rehabilitation in balancing the § 3553(a) factors, because it is not apparent from the sentencing transcript that such a balancing took place. Accordingly, we vacate and remand for resentencing.

It's good that this case is going back for resentencing. I wonder, though, why the case was brought in the first place.

The Fourth Circuit continues in its celebration of the Fourth Amendment. In the past few months, the Fourth Circuit has been kind to criminal defendants who have been searched by law enforcement without a warrant.

As the Fourth Circuit itself noted in yesterday's case of United States v Powell,

Earlier this year, in United States v. Foster, 634 F.3d 243, 248 (4th Cir. 2011), we noted "our concern about the inclination of the Government toward using whatever facts are present, no matter how innocent, as indicia of suspicious activity." Twice in the past few months, we reiterated this concern. See United States v. Massenburg, 654 F.3d 480, 482 (4th Cir. 2011); United States v. Digiovanni, 650 F.3d 498, 512 (4th Cir. 2011). In all three cases, we held that the Government failed to meet its minimal burden of articulating facts sufficient to support a finding of reasonable suspicion.

If three new cases isn't enough to call it a revolution, maybe the fourth case is. (For prior discussion of these cases on this blog see here and here).

A Buick Is Pulled Over

Obie Powell was riding in a Buick - and eating a fish sandwich - in Seat Pleasant, Maryland. The Buick was pulled over. The driver of the Buick did not have a valid driver's license. While the drivers' license of the driver was being checked by one officer, another officer made conversation with Mr. Powell in the Buick. As the court of appeals noted,

The topics of this conversation included their mutual appreciation of fish sandwiches (which Powell was eating) and music (which was audible in the Buick).

When the driver's drivers' license came back as suspended, an officer asked if anyone in the car had a valid drivers' license.* Mr. Powell volunteered his.

Mr. Powell's Drivers' License

When Mr. Powell's license was being run, it was determined that both his license was suspended and that he had some prior criminal history. The police database flagged him as having "caution data" as a result.

As the officer explained in the district court,

"It's just a prior. It doesn't mean that they [sic] up to the same activity, but at which time you still have to take that into consideration, that they may still be armed or may still be conducting the same business." [Moreover] he "had no way of knowing whether that was yesterday's news or 15 years ago news," and "[n]o way of knowing whether that was a conviction or an exoneration."

Mr. Powell Is Frisked

Based on Mr. Powell's "false statement" (the offering of the driver's license that was suspended in response to a request for a valid driver's license) and the caution data, Mr. Powell was taken from the car and frisked.

During the patdown, he became nervous and tried to run. The police then searched his backpack, which was still in the car. In the backpack, they found a gun and some crack.

The District Court Is Unkind To Mr. Powell

Mr. Powell filed a motion to suppress, then, after losing it, went to trial. At trial, as they say, he came in second.

The Fourth Circuit's Decision

The Fourth Circuit found that there was not a sufficient basis for the police to think that Mr. Powell was dangerous to justify their patdown of him. The only two factors they had were his false statement and the deeply ambiguous caution data.

As the court of appeals explained,

Combining these factors and viewing them objectively in light of the other circumstances of this case does not aid the Government's position. We have already detailed the overall context of the traffic stop, which strongly militates against a finding of reasonable suspicion that Powell was armed and dangerous. Given the glaring weakness of the factors articulated by the Government, we are convinced that a reasonably prudent officer in these circumstances would not be warranted in the suspicion that Powell was armed and dangerous on the night of the traffic stop. Accordingly, the patdown was not permissible under the Fourth Amendment, and the district court should have suppressed the evidence that was seized during the traffic stop.

The case, accordingly, was vacated and remanded.

Concluding Thoughts

Three things about this strike out to me.

First, Obie Powell was released from the Bureau of Prisons custody last summer after having completed his sentence. I suppose he's happy to avoid part of his term of supervised release, but it's a pretty visceral case of justice delayed being justice denied.

Perhaps he'll be happy, at least, to be able to tell potential employers that he shouldn't have been in prison during that time?

Second, the Fourth Circuit is really unkind to the government in this case. Check out footnotes 3, 4, and 9 in the opinion. That's the kind of heat you expect this court to send to a defense lawyer.

Finally, the case was argued and briefed by the Federal Defender for Wisconsin. What magnanimity that Wisconsin is willing to export federal criminal defense lawyers to the Fourth Circuit to handle cases!

* Or so found the district court. Mr. Powell argued that this finding was not supported by the evidence - instead the officer asked only for a drivers' license. It matters for the argument - if handing over the drivers license was a false statement (because it was tantamount to saying "this drivers' license is valid") then that can add to the totality of the circumstances as to whether Mr. Powell was dangerous. Because, of course, people with suspended licenses, who willingly offer them up to the police, are known to have weapons on their person.

It's bad-government-conduct-in-a-drug-border-crossing-case-from-the-Ninth-Circuit week here at the Federal Criminal Appeals blog. Yesterday, we blogged about the government's argument that psychiatrists are qualified to read law enforcement records.

Today, we deal with the Ninth Circuit's opinion in United States v. Sanchez.

Mr. Sanchez crossed the border from Mexico with 64 pounds of cocaine in his car, a 2002 Passat. A customs officer, suspicious of the car's German practicality, waived Mr. Sanchez to secondary inspection. A drug dog alerted to the car. The cocaine was found.

Mr. Sanchez was questioned by Customs agents. Mr. Sanchez said that he was afraid of the people who gave him the drugs to carry across the border. Mr. Sanchez asked the agent to help him because his family was in Mexico. The agent asked Mr. Sanchez for help finding the people who gave him the drugs. Mr. Sanchez asked if he could call his family. The agent allowed him to try to call, but the call did not go through.

Mr. Sanchez was indicted for importing and possessing cocaine.

At trial, Mr. Sanchez argued that he was worried his family would be hurt if he didn't transport the drugs. He testified in his defense, and explained that he is a U.S. citizen who lived with his wife and children in Mexico. He was looking for work as a carpenter, when drug traffickers approached him. He refused.

The drug traffickers came back to him. They explained that they thought he would be a particularly effective courier since he was a U.S. citizen. They became more threatening. Mr. Sanchez explained that he was afraid that they would hurt his family. Finally, reluctantly, he agreed.

The government made its closing argument. Mr. Sanchez's lawyer then made their closing argument. Sanchez's lawyer argued that Mr. Sanchez was forced to import the drugs - that he was under duress when he agreed to take the drugs into the United States. For that reason, his lawyer argued, Mr. Sanchez should not be convicted of importing the cocaine.

The prosecutor gave his rebuttal argument.* Mocking Mr. Sanchez, he argued,

[W]hy don't we send a memo to all drug traffickers, to all persons south of the border and in Imperial County and in California--why not our nation while we're at it. Send a memo to them and say dear drug traffickers, when you hire someone to drive a load, tell them that they were forced to do it. Because even if they don't say it at primary and secondary, they'll get away with it if they just say their family was threatened. Because they don't trust Mexican police, and they don't think that the U.S. authorities can help them. Why don't we do that?

The implication, in case it isn't clear, is that we should not really send a memo to drug traffickers, and that to acquit Mr. Sanchez was tantamount to drafting such a memorandum.

Mr. Sanchez's lawyer did not object to the prosecutor's "send a memo" argument. Until the appeal.

The law is clear that a prosecutor cannot argue that a person should be convicted to prevent larger societal ills, or to deter future lawlessness, or to take a stand for community values. A federal criminal trial is supposed to be about whether the person on trial committed the crime charged - not whether society is on a downward spiral.

The government argued to the Ninth Circuit that "send a memo" is just a fancy way to argue that Mr. Sanchez's position was unreasonable (to parrot Fancy Nancy).

The Ninth Circuit thought that there are less fancy and problematic ways of making that point, and that a government lawyer has an obligation to avoid making illegal arguments in closing.

Even though Mr. Sanchez's lawyer failed to object, the Ninth Circuit found the "send a memo" argument so out of bounds that it vacated the conviction and remanded. That's a fancy way of saying Mr. Sanchez gets a new trial.

* Yes, in a federal criminal case, the prosecutor gets the first and the last word.

Sometimes, a case comes along, and you wonder if the government is even trying to be fair.

Brad Santini drove from Mexico into California. He had 28 kilograms of marijuana hidden in his car. It was found. He was charged and went to trial.

At trial, Mr. Santini's lawyers argued that he may have been tricked into driving the car across the border after someone else hid the marijuana in it without his knowledge.

To buttress this argument, Mr. Santini's counsel presented evidence that Mr. Santini had suffered a traumatic brain injury three years before his ill-fated border crossing. The defense called a clinical psychologist to testify as an expert that Mr. Santini had "permanent social defects" and that his kind of brain injury can leave people with difficulty with "social perception of other people."

Because Mr. Santini had these permanent social defects, he was easier to trick, the defense argued.

The government also called a mental health professional - a psychiatrist named Dr. Kalish. Dr. Kalish's testing consisted, apparently, of a criminal background check. You know, the kind they routinely teach psychiatrists to do during a residency.

Dr. Kalish reviewed Mr. Santini's rap sheet. He noticed that Mr. Santini had "extensive law enforcement contacts" before his injury in 2005. Because of that, the government psychiatrist concluded, Mr. Santini didn't change after 2005 because after 2005 he had the regrettable border crossing. So, because there were law enforcement contacts before the injury and after the injury, the injury didn't affect his social perceptions.

As a matter of clear thinking this is suspect - surely not everything changes in a person after a brain injury. Mr. Santini may have been a Baltimore Ravens fan before his injury and after his injury as well, but it doesn't mean that the injury didn't have an effect on him. One would think, instead, that a psychiatrist would do some kind of mental health or function evaluation and base his conclusion on that.

In any event, the government was allowed to use its expert to introduce this testimony about Mr. Santini's "extensive prior law enforcement contacts." Mr. Santini was convicted at trial.

In United States v. Santini, the Ninth Circuit reversed, based solely on the decision to let the jury hear about Dr. Kalish's testimony about Mr. Santini's prior law enforcement contacts.

The court of appeals noted that this evidence was highly prejudicial and way outside of a psychiatrist's area of expertise. The testimony was based, not on convictions, but on "contacts." As the court of appeals noted,

For the reasons outlined above, the rap sheet was not sufficient to form the basis of Dr. Kalish's opinion that Santini had engaged in "similar" criminal behavior prior to his brain injury. An expert in one field (Dr. Kalish was a psychiatrist) cannot express an opinion relying on data that requires expertise in another field (here, a rap sheet that would require interpretation by an expert in law enforcement record-keeping).

The evidence was not admissible under Rule 404(b). It was prejudicial, so barred by Rule 403. And it was outside of Dr. Kalish's expertise, so not allowed under Rule 702.

Because the government cannot use an expert to introduce any evidence that smears a defendant whenever it can find an expert to articulate a questionable theory of quasi-scientific relevance, the Ninth Circuit vacated Mr. Santini's conviction and remanded the case for a new trial.

Cuba is known for exporting many things, among them cigars, rum, and rumors of Fidel Castro's death.

The Eleventh Circuit's opinion in United States v. Dominguez deals with two of Cuba's most beloved exports: baseball players and asylum seekers.

Wet Foot/Dry Foot

First, a bit of background. As an expression of a reasoned and principled immigration policy, the official position of the United States has been that if someone is trying to leave Cuba and come to the United States, whether or not they are welcome depends on whether they are able to physically make it to U.S. soil.

If a person fleeing Cuba walks up out of the surf onto a United States beach, they are eligible to stay in the country. If the person leaving Cuba is intercepted by the Coast Guard, or Immigration and Customs Enforcement, in the water, they are not allowed to stay. This is called the "Wet Foot/Dry Foot" policy.

This policy has always struck me as the application of the Calvinist idea that the best measure of divine approval of a person is his or her wordly success to immigration policy - we can tell whether you're worth keeping in the United States by looking at whether you were able to make it here. Sensible or not, this is our country's policy. Perhaps we just prefer people who don't require towels.

Gustav Dominguez

Gustavo Dominguez knew this policy. Mr. Dominguez was a professional sports agent who worked with professional baseball players.

Competition for baseball talent is tough. Mr. Dominguez was looking for a new way to serve potential clients.

As a result, he worked with another man - Mr. Medina, who had a career in smuggling - to bring five baseball players to the United States from Cuba by boat. One the first try, the Coast Guard shot out the engine of their boat. The players went back to Cuba.

On the second try, the baseball players made it to the Florida Keys. They arrived on dry land in the United States and were dry foot people for purposes of our government's Wet Foot/Dry Foot policy. The players then traveled to California, where they met an immigration lawyer and played baseball for talent scouts.

Sadly, though three of the players signed minor league contracts, none wound up in the Major Leagues.

Mr. Medina

As the court of appeals opinion describes it,

Medina has lived a life of crime; he has numerous prior convictions for drug trafficking, smuggling, insurance fraud, and money laundering.

As is so often the case, Mr. Medina found himself on the wrong side of a federal investigation. To reduce his time in prison, he shared with federal prosecutors the work he had done with Mr. Dominguez to bring these players to the United States.

The Charges

Mr. Dominguez was charged with smuggling the baseball players into the country, transporting them to avoid immigration officials, and harboring them to avoid detection by the officials.

He went to trial and was convicted of the smuggling, transporting, and harboring crimes under 8 U.S.C. § 1324.

Smuggling

Mr. Dominguez argued that because the U.S. Wet Foot/Dry Foot policy meant that the players would be allowed to stay, he could not be found guilty of smuggling them into the country contrary to immigration law.

The court of appeals disagreed. The court noted that after an amendment, the portion of 8 U.S.C. § 1324 that prohibits smuggling a person into the country,

Section 1324(a)(2) now punishes any person who knowingly brings to the United States an alien while knowing or recklessly disregarding the fact that the alien has not received "prior official authorization to come to, enter, or reside in the United States." The statute explicitly states the offense occurs "regardless of any official action which may later be taken with respect to such alien." 8 U.S.C. § 1324(a)(2).

Thus, as the court of appeals held, the immigration status that matters is not the person's immigration status eventually - even if that status is inevitable - but rather the person's immigration status at the time he or she is brought into the country.

For that reason, the Wet Foot/Dry Foot policy does not allow a person in the United States to, as it were, help dry the feet of someone coming from Cuba. If you're going to make it here, you've got to make it here without help.

Harboring and Transporting

Mr. Dominguez, though, fared much better on his harboring and transporting charges.

Because he brought the players to an immigration lawyer quickly and had them openly auditioning with baseball talent scouts, the court of appeals thought that he simply could not be thought to be secretly transporting or harboring these men from immigration officials.

As the appellate court noted,

the players lived freely and openly. They played baseball, went out with friends, ate at restaurants, and watched professional baseball games. On November 12, 2004, the players were "showcased" in front of scouts from almost every Major League team.
Based on this evidence, a reasonable jury could not find beyond a reasonable
doubt that Dominguez transported the Cuban players from Miami to Los Angeles in order to further their illegal status.

Mr. Dominguez's convictions for transporting and harboring the baseball players were reversed and the case was sent back for resentencing.

One of the trickiest problems in a criminal trial, in federal court or any other court, is determining if the person accused of a crime should testify.

On one hand, the jurors instinctively want to hear what the person has to say. They're instructed not to hold it against him if he doesn't testify, but, as a matter of human psychology, people want the guy who just sat and listened to others say bad things about him to say something back.

And, of course, the person on trial may have something useful to say in his own defense.

On the other hand, if the person has a criminal record, by testifying the government can often introduce that criminal history to the jury - if it wasn't already presented.

Worse, in federal court, a person who testifies and is convicted runs the risk of being assessed a two-level increase for obstruction of justice under U.S.S.G. § 3C1.1.

Doesn't that violate a person's right to testify in their own defense? you may wonder. As it happens, the Supreme Court heard an argument to that effect - and rejected it - in United States v. Dunnigan.

The Court acknowledged that in prior precedents

we indicated that the ordinary task of trial courts is to sift true from false testimony, so the problem caused by simple perjury was not so much an obstruction of justice as an expected part of its administration

Nonetheless, because section 3C1.1 does not apply to every defendant who testifies and is convicted, the Supreme Court held that section 3C1.1 passes constitutional muster and does not unduly infringe on a person's right to testify in his defense.

The obstruction enhancement was at issue in the Fourth Circuit's opinion in United States v. Perez.

In Perez, the person on trial testified in his own defense. He was convicted. At sentencing, the district court determined that the two-level bump under 3C1.1 applied because:

[T]he fact remains that the jury decided this matter unfavorably toward Mr. Perez. . . . the Court agrees that the government witnesses were more credible, from the Court's perspective, than was Mr. Perez . . . The Court believes that the jury reasonably accepted testimony of the government witnesses, rejected that of Mr. Perez and the Court believes that Mr. Perez's testimony at trial was not credible and constituted obstruction of justice.

The Fourth Circuit used Perez as an opportunity to discuss what a sentencing court has to find in order to impose an adjustment under 3C1.1. Mindful that the Supreme Court requires that the enhancement not apply in every case where a person testified and was convicted, the Fourth Circuit clarified that 3C1.1 only applies when the person on trial:

"(1) gave false testimony; (2) concerning a material matter; (3) with willful intent to deceive"

The Fourth Circuit, though, seemed troubled by how easy it can be for a sentencing court to impose this enhancement. For that reason, the Fourth Circuit now requires that a district court

must provide a finding that clearly establishes each of the three elements. With respect to willfulness, for example, it would, in the usual case, be enough for the court to say, "The defendant knew that his testimony was false when he gave it," but it could not simply assert, "The third element is satisfied." While some may suggest this is little more than an empty formality, we believe it serves a vital purpose.

Because the district court in Perez did not do this factfinding, the court of appeals reversed and remanded for a new sentencing hearing.

Paresh Patel is probably the smartest lawyer I know when it comes to criminal history calculations in the Fourth Circuit. So I was particularly tickled to see his win in United States v. Donnell.

How a person's criminal history is calculated when a federal judge decides what sentence the person should get is, of course, incredibly important to what the sentence will be. (See this post, or this one, or this one.)

If a person's prior convictions are for crimes of violence, that's particularly true. In many cases with crimes of violence, the guidelines look twice to a person's criminal history - once when the criminal history score is calculated and once when the offense level is determined.

For career offenders under U.S.S.G. § 4A2.1, having two prior convictions for a crime of violence can dramatically increase the sentencing guidelines. The illegal reentry guidelines also go up if a person has a prior conviction for a violent crime, under § 2L1.2.

And, for people who are caught with a gun after a felony conviction, criminal history can have a dramatic effect on their sentence. If a person is convicted of being a felon in possession of a firearm, normally the statutory maximum is ten years - that's the most the court can give. If the person has three convictions for a crime of violence, the statutory mandatory minimum is 15 years, and the statutory maximum is life.

Even if a person convicted of being a felon in possession of a firearm doesn't have three convictions for a crime of violence, his guidelines are still affected by whether the prior offenses are violent crimes under U.S.S.G. § 2K2.1.

Section 2K2.1 was at issue in Donnell. Mr. Donnell pled guilty to being a felon in possession of a firearm. He had a prior conviction for second degree assault in Maryland. He also had another conviction for a crime of violence.

Under 2K2.1, if he has two convictions for a crime of violence, his offense level starts at a 24. If it's only one, then it starts at a 20.

The question was whether a Maryland second degree assault charge counts as a crime of violence. The Fourth Circuit has already said that it doesn't always - as the court of appeals said in Donnell:

second degree assault under Maryland law "encompasses several distinct crimes, some of which qualify as violent felonies and others of which do not"

When a prior conviction might be violent or might not be, the sentencing court has to look at the records of the case to see what happened.

A court can look at a charging document to see if the prior charge was a crime of violence (the court can also look at other documents too - like a transcript of a plea proceeding). In Donnell, the charging document itself didn't say much, just that Mr. Donnell was charged with second degree assault and a judge's checkmark saying that there was probable cause to think he committed the assault.

There was, however, a separate document - a statement of probable cause - that described facts that would have made Mr. Donnell's conviction a crime of violence. That statement of probable cause, though, was not a part of the document that stated the charges.

The district court thought it was good enough. The court of appeals disagreed.

As the Fourth Circuit said,

The certainty that the defendant necessarily admitted the facts contained in the external document, as distinguished from the charging document itself, the transcript of the plea colloquy, or the written plea agreement, is absent.

And, as a result, the case was reversed and remanded for a new sentencing.

Perhaps my favorite note to end on, is the opinion's last footnote:

Although we express no view as to what sentence the district court might properly impose upon remand, we find wholly unpersuasive, particularly in light of the district court's careful analysis of the § 3553(a) factors, the Government's fall-back argument that we should affirm the judgment on the theory that the district court would have imposed the same sentence without the enhancement that we find was improperly applied.

Seriously, a four-level difference in the guidelines wouldn't have mattered to the district court? That's a muscular view of Booker for a federal prosecutor to take.