Results tagged “Supervised Release” from The Federal Criminal Appeals Blog

March 4, 2014

Short Wins - The "A U.S. Attorney in California Does the Right Thing Edition"

There are two interesting opinions I'd like to highlight from this crop.

First, there's United States v. Prado from the Seventh Circuit. Every now and again, in sentencing, a district court will say it can't consider something. It seems to me that whatever that something is, these days, a district court can probably consider it. Prado is another example of that proposition.

More sensationally, check out the Ninth Circuit's opinion in United States v. Maloney! Laura Duffy, the AUSA for the Southern District of California, watched the en banc argument in this case, decided the government's position was wrong and asked the Ninth Circuit to vacate the conviction. Nice.

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Fish, First Circuit: Appellant was convicted of being in possession of body armor after having been convicted of a crime of violence. The conviction was reversed because none of Appellant's previous convictions qualifies as a crime of violence.

Defense Attorney: Thomas J. O'Connor, Jr.

2. Kovacs v. United States, Second Circuit.pdf: The Eastern District of New York denied Appellants' petition for writ of error coram nobis. The Second Circuit reversed and granted the writ after it found that Appellant's lawyer rendered ineffective assistance of counsel. Appellant's lawyer gave erroneous advice regarding deportation after pleading guilty.

Defense Attorney: Nicholas A. Gravanta, Jr.

3. United States v. Maynard, Second Circuit: Appellants were convicted after a series of bank robberies and ordered to pay restitution. Because the amount of restitution included bank expenses beyond the amount taken, the Second Circuit vacated and remanded for a new determination of restitution.

4. United States v. Salazar, Fifth Circuit: After violating the terms of his supervised release, Appellant was sentenced to prison and an additional period of supervised release, including special conditions. The Fifth Circuit found that the district court abused its discretion by ordering imposing the special condition without demonstrating that the condition was reasonably related to statutory factors.

5. United States v. Urias-Marrufo, Fifth Circuit: The district court denied Appellant's motion to withdraw her guilty plea. On appeal, the Fifth Circuit vacated and remanded because the district court did not properly consider the merits of Appellant's ineffective assistance of counsel claim.

6. United States v. Adams, Seventh Circuit: Two of the appellants received sentencing enhancements for maintaining a "stash house" after being convicted of drug offenses. Because the sentencing guideline provision which allowed that enhancement was not in place at the time of the offense, their sentences were reversed and remanded.

7. United States v. Maloney, Ninth Circuit: The United States Attorney moved to vacate the sentence and remand the case after reviewing a video of the en banc oral argument. The court agreed that the prosecutor had made references during rebuttal that were inappropriate and granted the motion to vacate.

8. United States v. Harrison, Tenth Circuit: After being convicted by a jury for a drug conspiracy charge, Appellant was sentenced to 360 months in prison. The sentence was vacated and remanded because the court improperly adopted the calculation in the presentence report showing that Appellant was responsible for more than 1.5 kilograms of methamphetamine.

Defense Attorneys: O. Dean Sanderford and Raymond P. Moore

9. United States v. Jones, Eleventh Circuit: Appellant was sentenced to 180 months for being a felon in possession of a firearm. After the Supreme Court ruling in Descamps, it is clear that Appellant's prior convictions cannot serve as an Armed Career Criminal Act predicate offense. Because a sentencing enhancement was incorrectly applied, the sentence is vacated and remanded.

10. United States v. Baldwin, Second Circuit: Appellant was sentenced to 87 months' imprisonment after pleading guilty to possession of child pornography, and possession of a firearm by a convicted felon. During sentencing a two-level enhancement for distribution of child pornography was imposed. The sentence was vacated because there was no finding of knowledge as required to impose that two-level enhancement.

11. United States v. Lagrone, Fifth Circuit: Appellant was charged with two felony theft counts and sentenced to two concurrent terms of 45 months' imprisonment. Because each of the two theft offenses involved Government property with a value less than $1,000, she could not be convicted of more than a single felony count. The case was therefore vacated and remanded.

12. United States v. Prado, Seventh Circuit: After pleading guilty to one count of extortion, Appellant asked the district court, during sentencing, to consider a similar case and the sentence imposed during that case. The court did not allow that information to be introduced. Appellant's sentence was reversed and remanded because the court erred in not understanding that it had discretion to hear Appellant's argument and that error was not harmless.

13. United States v. Shannon, Seventh Circuit: One of Appellant's special conditions of supervised release was that he could not possess any sexually explicit material. This condition was not discussed by anyone prior to its imposition. Based on that lack of findings or explanation on the lifetime ban, the condition was vacated.

14. United States v. Howard, Eighth Circuit: Appellant's sentence was vacated and remanded for resentencing because one of his prior convictions no longer qualified as a "violent felony" under the Armed Career Criminal Act after the Supreme Court's decision in Descamps v. United States, ____ U.S. ____, 133 S.Ct. 2276 (2013).

February 21, 2014

Short Wins - A Dog's Breakfast of Victories

It's a grab bag of victories in the federal circuits for last week. A few sentencing remands - including one based on a loss calculation in a health care fraud case - but the most interesting remand is in the First Circuit's opinion in United States v. Delgado-Marrero.

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Delgado-Marrero, First Circuit: Delgado-Marrero and Rivera-Claudio were both convicted by a jury of drug and gun charges and sentenced to 15 years in prison. Delgado-Marrero was granted a new trial because the district court erred by excluding testimony of a defense witness. The First Circuit also found error with regard to Rivera-Claudio's sentence because the district court failed to properly instruct the jury that in answering a post-verdict special question regarding quantity of drugs, they needed to be sure of the quantity beyond a reasonable doubt.

Defense Attorneys: Rafael F. Castro-Lang, Linda Backiel

2. United States v. Johnson, Seventh Circuit: Appellant's sentence was vacated because a sentencing enhancement was incorrectly applied. Based on the victim's testimony at sentencing, Appellant had not committed a sex offense while in failure to register status, so that enhancement was improper.

3. United States v. Perry, Seventh Circuit: Appellant twice violated the terms of his supervised release. Based on the second violation, he was sentenced to five years' imprisonment. Because the original conviction had a statutory maximum term of imprisonment of two years, the new sentence for five years' imprisonment was vacated and remanded.

4. United States v. Bankhead, Eighth Circuit: Appellant received a 180-month mandatory minimum sentence under the Armed Career Criminal Act ("ACCA") after pleading guilty to being a felon in possession of a firearm. His sentence was reversed and remanded because a predicate juvenile offense, which was used in determining sentence, did not qualify as an ACCA predicate offense.

5. United States v. Gonzalez-Monterroso, Ninth Circuit: Appellant's sentence was vacated and remanded. The district court erred in determining that Appellant's prior Delaware conviction for attempted rape in the fourth degree was a crime of violence warranting a 16-level sentencing enhancement. The Ninth Circuit determined that Delaware's statutory definition of "substantial step" criminalized more conduct than the generic federal statutory definition.

6. United States v. Popov, Ninth Circuit: Appellants were convicted of conspiracy to commit health care fraud arising from the submission of fraudulent bills to Medicare. The Ninth Circuit reversed the district court's findings regarding the amount of loss, holding that evidence can be submitted to show that the amount billed to Medicare overestimates the actual loss amount.

February 12, 2014

Short Wins - We Aren't Dead Edition

Gentle readers,

The Courts of Appeal have been more diligent in issuing opinions than we've been in posting them. Apologies. As those of you who do trial work can understand, sometimes it's really hard to do anything other than eat and sleep when there are witnesses to prepare for and arguments to make. Alas.

That said, wow, these are a bunch of cases that a scholar of sentencing and supervised release law would love. Enjoy!

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Pena, First Circuit: Appellant pled guilty to conspiracy to distribute and also to possession with intent to distribute a drug and was sentenced to 12 years' imprisonment. Because the plea proffer did not contain an admission that Appellant's actions resulted in the death of a person, and the government did not prove that element beyond a reasonable doubt, the sentence was vacated and the case remanded for resentencing.

Defense Attorney: Robert L. Sheketoff

2. United States v. Rodriguez-Santana, First Circuit: Appellant challenged the special sex-offender conditions of his supervised release. The First Circuit vacated the special condition that Appellant permit monitoring of any device with internet access or data or video storage or sharing capabilities because the government conceded that this condition may not be justified.

Defense Attorneys: Thomas J. Trebilcock-Horan, Hector E. Guzman, Jr., Liza L. Rosado-Rodriguez

3. United States v. Williams, Seventh Circuit: Appellant pled guilty to identity theft-related crimes and was sentenced to 56 months' imprisonment. That sentence was calculated using sentencing guidelines in effect at the time of sentencing, rather than at the time the crimes were committed. Because this resulted in higher sentencing guidelines, the sentence was vacated and the case remanded for resentencing.

4. United States v. Maynard Williams, Ninth Circuit: The Ninth Circuit reversed and vacated the district court's order revoking Appellant's supervised release. Appellant had entered an Alford plea. The Ninth Circuit held that such a plea is insufficient to prove commission of a state crime for purposes of a federal supervised release violation because the state itself does not treat such a plea as probative of the Appellant's guilt.

Defense Attorney: Alison K. Guernsey

5. U.S. v. Benns, Fifth Circuit: Appellant was convicted of making false statements on a credit card application. His sentence was reversed and the case remanded for resentencing because the district court improperly calculated the loss amount attributable to him.

6. U.S. v. Robinson, Fifth Circuit: Appellant was convicted of child pornography charges and sentenced to 720 months in prison. On appeal, the sentence was vacated and remanded because the trial court did not appreciate its authority to consider evidence of the Appellant's cooperation during sentencing.

7. U.S. v. Wooley, Fifth Circuit: Appellant was sentenced to 30 months imprisonment during a probation violation hearing. The trial court stated that it imposed that sentence because of the court's belief that Appellant had an untreated drug problem. The sentence was reversed because a sentencing court is prohibited from increasing or lengthening a prison sentence to promote rehabilitation.

8. U.S. v. Whitlow, Seventh Circuit: Appellant was convicted and sentenced for drug-related offenses. The Seventh Circuit remanded to allow the trial court to exercise discretion on whether to give credit for eight months Appellant spent in in pretrial custody.

9. U.S. v. Rouillard, Eighth Circuit: Appellants conviction for sexual abuse of an incapacitated person under 18 U.S.C. § 2242(2) was reversed and remanded. The Eighth Circuit, en banc, recently clarified the mens rea requirement of 18 U.S.C. §2242(2) and this development requires remand in this case because the Appellant's request for a jury instruction on his knowledge of the incapacity of the person was denied.

10. U.S. v. Mathauda, Eleventh Circuit: Appellant was convicted of various mail and wire fraud charges and sentenced to 252 months' imprisonment. The sentence was vacated and remanded for resentencing because the district court erred in adding a sentence enhancement for Appellant's alleged violation of a prior court order.

11. U.S. v. Hagman, Fifth Circuit: After pleading guilty to two firearms charged, Appellant challenged a four point sentencing enhancement for bartering 8 to 24 firearms. The Fifth Circuit vacated the sentence and remanded because the government failed to prove by a preponderance of the evidence that Appellant had possessed or unlawfully sought to obtain that many firearms.

12. U.S. v. Adkins, Seventh Circuit: Appellant pled guilty to receipt of child pornography and was sentenced to 210 months in prison and a number of special conditions. The Seventh Circuit vacated Appellant's sentence and remanded the case because one special condition - to not view or listen to any pornography or sexually stimulating material or sexually oriented material or patronize locations where such material is available - was unconstitutionally vague and overbroad.

13. U.S. v. Jordan, Seventh Circuit: Appellant was sentenced to 24 months in prison for violating terms of his supervised release. On appeal, he challenged the revocation of his supervised release arguing that the district court erred by considering hearsay evidence without first making the "interest of justice' finding required when the defendant was denied the right to question an adverse witness under the Federal Rules of Criminal Procedure. The Seventh Circuit agreed, and reversed and remanded.

14. U.S. v. Tucker, Eight Circuit: Appellant's sentence was vacated and remanded for resentencing because the elements under the Nebraska statute, under which Appellant was convicted, do not ordinarily encompass conduct that presents a serious potential risk of physical injury to another. Therefore Appellant inappropriately received an enhanced sentence under the Armed Career Criminal Act.

15. U.S. v. Ransfer, Eleventh Circuit: After a jury trial, Appellants were convicted of sixteen counts involving robbery, conspiracy, and using and carrying firearms. The Eleventh Circuit found that there was no evidence that one appellant, Lowe, took any action in furtherance of one of the robberies. His conviction was vacated on those related counts and the case remanded for sentencing.

December 10, 2013

Short Wins - The Bizarre Supervised Release Condition Edition

There are some good wins in the federal circuits from last week, but I think that perhaps the most interesting is U.S. v. Malenya.

The case deals, primarily, with supervised release conditions. I've seen some odd supervised release conditions, but this one takes the cake:

You shall notify the U.S. Probation Office when you establish a significant romantic relationship, and shall then inform the other party of your prior criminal history concerning your sex offenses. You understand that you must notify the U.S. Probation Office of that significant other's address, age, and where the individual may be contacted.

Check out the full opinion to see how this, and other really broad conditions, are handled.

To the victories!

1155650_berlin_siegessule.jpg1. U.S. v. Taylor, Second Circuit: Taylor and his co-defendants were convicted of various charges related to a robbery of a pharmacy. Taylor fell asleep repeatedly during post-arrest questioning and was only intermittently alert. Finding that Taylor's post-arrest statements were not voluntary, and admission of those statements was harmful error, the Second Circuit vacated the convictions of all three men and remanded for a new trial.

Defense Attorneys: Kelley J. Sharkey, Jillian S. Harrington, and Colleen P. Cassidy

2. U.S. v. Robertson, Fourth Circuit: Appellant pled guilty to carrying a firearm as a convicted felon, a charge which arose after he was approached by police and allowed them to search him. Finding that Appellant never actually consented, but merely obeyed the police officer's orders, the Fourth Circuit found that the search was presumptively unreasonable in the absence of probable cause. The conviction was reversed.

Defense Attorney: Ronald Cohen

3. U.S. v. Malenya, D.C. Circuit: Appellant entered a plea agreement and received a 36-month term of incarceration, with all suspended but a year and a day. The court also imposed 36 months of supervised release subject to several specific conditions. Because the trial court did not weigh the burden of the supervision conditions with their likely effectiveness, there was an unconstitutional deprivation of liberty. The supervised release conditions are vacated and the case remanded to impose alternative conditions.

Defense Attorneys: Jonathan S. Jeffress, A.J. Kramer, Rosanna M. Taormina, and Tony Axam Jr.

4. U.S. v. Martinez-Cruz, D.C. Circuit: Appellant pled guilty to a single count of conspiracy to distribute methamphetamine. At the time he pled guilty, Appellant waived his right to counsel. Because Appellant provided proof that he was illiterate at the time he signed the plea agreement, the D.C. Circuit found that the burden should have shifted to the government to show, by a preponderance of the evidence, that the wavier was in fact valid. Since the trial court did not shift the burden, the judgment was vacated and the case remanded.

Defense Attorney: Richard K. Gilbert

June 17, 2013

Short Wins - Forced Medication and Discovery Issues Edition

There's a great diversity of cases where defendants won in the federal circuit's last week.

Probably the most significant - in terms of it's implication for other cases, is the discovery dispute in United States v. Muniz-Jaquez from the Ninth Circuit.

Though, of course, it's still from the Ninth Circuit.

And there's now interesting pro-defendant competency and forced medication law from the Fourth Circuit in United States v. Chatmon

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Chatmon, Fourth Circuit: After he was indicted for conspiracy to distribute crack and heroin, appellant was diagnosed with paranoid schizophrenia and deemed incompetent to go to trial. Later, the court granted the government's motion to forcibly medicate appellant to restore him to competency. This was error because the court did not discuss any less intrusive alternatives in granting the motion. The order was vacated and the case remanded.

2. United States v. Malki, Second Circuit: After appellant was convicted of retaining classified documents without authorization and sentenced to 121 months in prison, he successfully appealed and was resentenced. At resentencing, the court erred by engaging in a de novo resentencing. Because the remand was for limited, not de novo, resentencing, the case was remanded again for resentencing.

3. United States v. Muniz-Jaquez, Ninth Circuit: Appellant was convicted of being a deported alien in the United States. The trial court abused its discretion in excluding dispatch tapes that could have assisted in appellant's defense or could have helped him challenge adverse testimony at trial. Appellant's conviction was reversed and the case remanded for the tapes to be produced and for the court to address any motions the tapes may generate.

4. United States v. Rothstein, Eleventh Circuit: Appellant, who was convicted of running a Ponzi scheme through his law firm, placed the fruits of his scheme into his firm's bank accounts, where they were commingled with the firm's receipts from legitimate clients. The court erred in ordering the forfeiture of some of the accounts as proceeds of the scheme because the commingled proceeds could not be divided without difficulty, and forfeiture should have been sought under substitute property provisions. Further, the court erred in forfeiting to the government other properties without resolving the issue of whether the illicit funds were used to acquire them. Remand was required to resolve that issue.

5. United States v. Windless, Fifth Circuit: Appellant knowingly failed to register as a sex offender and pled guilty to the same. He was sentenced to supervised release and two conditions were imposed: (1) participation in a mental health treatment program; and (2) no direct or indirect conduct with children under 18. The court erred in relying at sentencing on three "bare arrest records" - records that did not contain any information about the underlying facts or conduct that led to the arrest - in imposing the conditions. Also, the second condition was overly broad. For these reasons, the first condition was vacated and the second reversed, and the case remanded for resentencing.

May 28, 2013

Short Wins - Special Assessment Lawyering and a Remand For The Oral Pronouncement of a Special Condition of Supervised Release

There are some dramatic wins in the federal appeals courts. Sometimes an entire conviction is overturned, and it is clear that the person will walk free. Other times, a large and unjust sentence is reversed.

And then there are this week's "wins". In one, a former judge, convicted of fraud, will have the total punishment imposed on him reduced by $100 - the cost of the Special Assessment that was imposed on a count that exceeded the statute of limitations.

In another, the district court imposed a condition of supervised release ordering treatment for a gambling addiction in the Judgment following the sentencing hearing, but not at the hearing itself. So the case will go back for a sentencing hearing where the judge can say that the person is going to be going to treatment for gambling addiction to the person's face.

To the victories?

1155650_berlin_siegessule.jpg1. United States v. Ciavarella, Third Circuit: Appellant, a former judge, was convicted of honest services mail fraud, among other offenses, and sentenced 336 months in prison and ordered to pay a special assessment and restitution. Because the mail fraud count was barred by the statute of limitations, and because appellant did not waive his challenge to this count on that ground, his conviction on this count was vacated. Remand was required to amend the judgment to reduce the special assessment.

2. United States v. Martin, Sixth Circuit: Appellant was sentenced to 120 months for being a felon in possession of a firearm. In the written judgment, the court imposed a special condition of supervised release that appellant undergo treatment for a gambling addiction. The government conceded that the court's failure to orally impose the condition was an abuse of discretion and requested remand for the court to conform its written judgment to the oral pronouncement. The appeals court granted that relief.

April 29, 2013

Short Wins - Resentencing Mania Sweeps The Federal Appeals Courts

There are a handful of resentencing remands in the federal courts last week.

Perhaps most interesting is United States v. Francois, remanding because the sentence imposed exceeded the statutory maximum. One doesn't see that too often (though it's preserved in even the most aggressive appeal waivers - I think of it as a theoretical thing rather than a real meaningful risk, but, hey, last week was the week.).

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Allen, Fourth Circuit: Appellant was convicted of conspiring to possess with intent to distribute 50 grams or more of crack cocaine and sentenced to 10 years in prison, the mandatory minimum at the time he committed the offense. Before he was sentenced, the Fair Sentencing Act ("FSA") was passed, which raised the drug quantities that triggered mandatory minimum sentences for certain crack offenses. Because the FSA was passed before appellant was sentenced and appellant didn't possess the amount of crack necessary to trigger the mandatory minimum under the FSA, his sentence was vacated and the case remanded for resentencing.

2. United States v. Dotson, Sixth Circuit.pdf: Appellant was convicted of sexual exploitation of a minor and possession of child pornography. He was sentenced to 22 years in prison to be followed by a 20-year term of supervised release, which carried with it many conditions. Because the district court did not articulate a rationale for imposing some of the conditions of supervised release, the judgment was vacated as to those conditions and the case remanded for further proceedings.

3. United States v. Francois, First Circuit: Appellant was convicted of four counts of possession of a firearm by a convicted felon, one count of possession a firearm with an obliterated serial number, and 12 counts stemming from his use of a stolen identity to purchase those firearms. For these offenses, he was sentenced to 164 months in prison. Because appellant's sentences for some of the offenses related to his use of a stolen identity exceeded the statutory maximum, the case was remanded for resentencing.

4. United States v. Hamilton, Eleventh Circuit: Appellant pled guilty to possession with intent to distribute 5 grams or more of crack cocaine and other drug offenses and was sentenced to 262 months. Appellant made two motions under 18 U.S.C.§ 3582(c)(2) to reduce his sentence based on Amendment 750 to the sentencing guidelines, which lowered the base offense levels applicable to crack offenses. It was error to deny the second motion because (1) the government's and probation's memos contained inaccurate or incomplete information about the drug quantity findings at sentencing and (2) the district court did not determine accurately the drug quantity.

5. United States v. Savani, et al., Eighth Circuit: Three appellants were separately convicted of crack cocaine-related offenses. In each case, appellants were sentenced below the statutory mandatory minimum. Shortly after appellants were sentenced, the FSA became law, and Amendment 750 was approved. In light of this amendment, appellants moved to further reduce their sentences. Because they were not barred for policy reasons from seeking a further sentencing reduction under § 3582(c)(2), the courts' orders denying appellants' motions were vacated and the cases remanded for further proceedings.

6. United States v. Washington, Eleventh Circuit: Appellant pled guilty to four fraud offenses and was sentenced to 105 months in prison. The sentence was based in part on the court's ruling that 250 or more people or entities were victimized by the fraud scheme. Because the government failed to present any evidence that there were 250 or more victims, appellant's sentence was vacated and the case remanded for the court to resentence appellant using a two-level, rather than six-level, enhancement for the number of victims under U.S.S.G. § 2B1.1(b)(2)(A).

January 13, 2013

Short Wins - A Franks Hearing in the Seventh Circuit!

Who doesn't love a good Franks hearing? Apparently the district court judge in the Seventh Circuit case of United States v. McMurtrey.

It's a relatively quiet week in the federal circuit's for defense victories. A Fourth Amendment win in the Tenth Circuit, a few sentencing remands, and, most exciting (for me) a Franks hearing remand in the Seventh.

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Castro, Third Circuit: Appellant was convicted of offenses arising out of three separate schemes to extort money through violence. Because the record did not contain evidence that he knowingly made a false statement to the FBI, his conviction of this offense was reversed. Given the reversal of his conviction on this count, remand was required for resentencing on appellant's conviction for conspiracy to commit extortion to calculate the correct guidelines range.

2. United States v. De La Cruz, Tenth Circuit: The district court erred in denying appellant's motion to suppress his ID card, which was obtained during an investigative seizure, because (1) the agents did not have reasonable suspicion to continue to detain appellant to obtain his identification and (2) the court erroneously concluded that appellant's identification was not suppressible, even if there was an unlawful seizure. For these reasons, the district court's decision was reversed and the case remanded.

3. United States v. Fraga, Fifth Circuit: Appellant was sentenced to 27 months in prison and a lifetime of supervised release after pleading guilty to failing to register as a sex offender. Because the district court did not give reasons for its imposition of a lifetime term of supervised release, this portion of the sentence was vacated and the case remanded.

4. United States v. McIntosh, Eleventh Circuit: Appellant was sentenced to 120 months in prison after pleading guilty to possession of five grams of crack with intent to distribute and carrying a firearm during a drug trafficking offense. After appellant committed these offenses, but before he was sentenced, the Fair Sentencing Act was enacted. The Act, among other things, raised the threshold possession amount that triggered the mandatory minimum sentence - 120 months - applied in appellant's case. Because appellant was sentenced after the Act's effective date, he was entitled to have the benefit of the Act's higher threshold for the mandatory minimum sentence. Consequently, his sentence was vacated and the case remanded for resentencing.

5. United States v. McMurtrey, Seventh Circuit: Because appellant demonstrated that the affidavits on which the search warrant for appellant's home was based were contradictory, remand was required for a full hearing pursuant to Franks v. Delaware.

October 27, 2012

Short Wins - Pro Se Criminal Contempt Reversed And Other Cases

It's a dog's breakfast of victories in the nation's federal criminal appellate courts.

Personally, I love a good case on the district court's contempt power -- look to see the Fourth Circuit's contempt reversal in United States v. Peoples profiled in more depth a little later in the week. The case has everything -- a pro se litigant, a finding of contempt, and profanity (which is tastefully referred to in the opinion). It reminds me of another great pro se contempt case from last year. It reminds me, too, of the Sixth Circuit's relatively recent case on the limits of a district court's power to sanction a lawyer. Always good stuff.

Which is not to give short shrift to the two other wins from last week -- resentencing in an illegal reentry case and unsupported supervised release conditions in a federal sex case.

And, of course, this week the Supreme Court is hearing more arguments and it's a relatively criminal heavy week. Tuesday has a Padilla case, as well as a nice Fourth Amendment question -- can the cops detain someone incident to a search warrant if the person is not actually present when the search warrant is executed. Wednesday is dog sniff day.

Of course, that assumes that Frankestorm doesn't blow the Eastern Seaboard away. Wish us luck with that.

1155650_berlin_siegessule.jpgOn to the victories:

1. United States v. Peoples, Fourth Circuit: On appeal of appellant's two criminal contempt convictions, the Fourth Circuit held that, as to the second conviction, the district court committed plain error when it summarily imposed a contempt sanction for appellant's tardiness because the court failed to provide appellant with notice and an opportunity to be heard, and because this failure affected appellant's substantial rights.

2. United States v. Rodriguez-Escareno, Fifth Circuit: In illegal reentry case, the district court applied a 16-level enhancement to appellant's sentence because it considered his earlier crime, conspiracy to distribute methamphetamine, to be a "drug trafficking offense" under Guideline § 2L1.2(b)(1)(A)(i). The court erred in applying the enhancement because the elements of the conspiracy conviction under 21 U.S.C. § 846 are not consistent with the meaning of "conspiring" under the relevant Guideline: the Guideline requires an overt act, while § 846 does not. This was plain error because it was obvious and affected appellant's substantial rights: had his sentence been properly calculated, his Guidelines range would have been 15-21 months, as opposed to the 41-51 months determined by the court. Appellant's 48-month sentence was vacated and the case remanded for resentencing.

3. United States v. Child, Ninth Circuit: Appellant was convicted of attempted sexual abuse. A condition of supervised release prohibited him from residing with or being around children under age 18, including his daughters, and from socializing with or dating anybody with children under age 18, including his fiancée, without prior approval from his probation officer. The court failed to make specific findings on the record addressing the necessity of restricting appellant's ability to have contact with his children and fiancée. Because of the significant liberty interest implicated, these errors - as well as the absence in the record of any evidence supporting the condition - rendered the condition substantively unreasonable. The condition was also overbroad. For these reasons, the condition was vacated and the case remanded.

April 20, 2012

A District Court Cannot Take Away Alcohol And Technology For The Rest Of A Person's Life Without Explaining Why


It's easy to hate people who are found guilty of child pornography charges. People don't like it when other people sexualize children

But, as the Sixth Circuit held in United States v. Inman, a district court still has to give reasons to be mean to them.

Mr. Inman pled guilty to possession of child pornography. He was sentenced to 57 months in prison.

Like anyone else who goes to federal prison, after he is released, he'll be on supervised release - a federal probation officer will supervise him to make sure he's not drifting into further lawlessness.

As a part of his supervised release, he'll have to follow certain conditions. Those conditions, as well as how long he'll be on supervised release, are set by a judge at his sentencing hearing.

In Mr. Inman's case, the government and Mr. Inman's lawyer recommended that he be on supervised release for ten years.

Instead of ten years, the district court, apparently motivated by how gross Mr. Inman's conduct is, sentenced him to a lifetime of supervised release. It didn't explain why.

1231362_sign_no_alcohol.jpgAnd, the district court set a number of conditions that no one asked for, or talked about at Mr. Inman's sentencing hearing - he had to submit to mandatory drug testing; to notify the probation office if he is prescribed any medicine; to provide the probation office with all of his financial information; and he can never drink alcohol again, possess or use a device capable of creating pictures or video, or rent a storage facility or post office box.

What's worse, the district court didn't explain why it was imposing these conditions - it just imposed them.

As the Sixth Circuit explained, these conditions are going to seriously mess him up.

The district court . . . precluded him from using any device capable of creating pictures or video. This special condition effectively prohibits Inman for his lifetime from possessing a cell phone with photo or video capability, a video camera, or any other device capable of creating pictures or videos, even if such devices might be used appropriately in connection with employment or family activities.

So much for getting the new iPhone.

Mr. Inman can never drink alcohol again, according to the district court, even though he doesn't have a problem with alcohol. The Sixth Circuit was troubled by this condition too.

Nothing in the record suggests that Inman has any problem with alcohol or drug dependence; yet, he is now barred from consuming alcohol for life, required to submit to periodic drug testing, and required to keep the probation office informed of any prescription medications in his possession. Supervised release conditions must be tailored to the specific case before the court. Where appropriate, the mandatory condition of drug testing "may be ameliorated or suspended by the court for any individual defendant if the defendant's presentence report or other reliable sentencing information indicates a low risk of future substance abuse by the defendant." 18 U.S.C. § 3563(a)(5). Moreover, the pertinent statute on discretionary conditions does not permit a total ban on alcohol, but allows a court to order the defendant to "refrain from excessive use of alcohol." 18 U.S.C. § 3563(b)(7) (emphasis added). Because Inman appears to present a low risk of future substance abuse, the district court should explain why these conditions of supervised release are warranted.

Finally, the Sixth Circuit thought the requirement that Mr. Inman allow his finances to be inspected by a probation officer was not supported by the record.

Inman also challenges the special condition requiring him to provide the probation office with any requested personal financial information. Inman's crime was not financial in nature. We realize that Inman's finances may give a probation officer insight into whether Inman is involved in illegal conduct, but we cannot approve a requirement that Inman disclose any and all financial information to the probation officer without first reviewing the district court's explanation as to why such a condition is necessary in light of the pertinent sentencing factors.

Based on all of that, the case went back to the district court for resentencing. If a district court is going to take away someone's ability to have an iPhone for life, that court has to do a little bit more explaining.

See also:
Sex Offenders, Supervised Release, and The Eighth Circuit

March 19, 2012

Just Because It's A Supervised Release Hearing Doesn't Mean There Are No Rules

Anthony Doswell was having a bad run of luck.

He was on supervised release from the end of a federal sentence. Supervised release works a bit like probation for those who have been in prison - folks coming out of a federal prison have a period of years where they have to check in with a probation officer, be drug tested, and, if they mess up, sent back to prison.

1268685_washington_monument.jpgOne big way to mess up is to commit a new crime. The rub is that a person can be violated - and sent back to prison - for committing a new crime, not just for being convicted of committing a new crime.

So, it's possible for a person on supervised release to be charged with a new crime, beat the charge, then be sent to prison anyway.

It's a hard world.

Anthony Doswell was in a spot like that. He was on supervised release and had been charged with having some marijuana on his person. He also tested positive for heroin and didn't show up to mental health treatment, or to meet with his supervising probation officer. [FN1]

He and his lawyer went to court to answer the allegations. His plan was to admit that he had been using marijuana and throw himself on the mercy of the court.

At the hearing, his lawyer learned that Mr. Doswell had previously been charged with heroin distribution.

Mr. Doswell had also been to court on the charge - twice! Each time the chemist who said the heroin in question was heroin had neglected to show up. The heroin case was eventually dismissed.

Mr. Doswell and his attorney may not have had the most transparent relationship.

In any event, Mr. Doswell objected to a violation of his supervised release based on the heroin. The government went forward with the allegation, providing the district court with the charging documents for the state court heroin distribution charge, as well as the chemist's report.

The government did not call any witnesses.

The district court found that Mr. Doswell had violated his supervised release by selling heroin. As the Fourth Circuit summarized it,

Without explanation, the district court concluded that, "notwithstanding the objection," the drug analysis report was "sufficient to support the [heroin] violation alleged." Accordingly, the court found Doswell guilty of the heroin violation set forth in Supplemental Notice, a violation that the court concluded, "in itself, [wa]s sufficient for . . . a mandatory revocation [of Doswell's supervised release]." The court then sentenced Doswell to the statutory maximum, twenty-four months of imprisonment.

On appeal, the only issue the Fourth Circuit dealt with, in United States v. Doswell, was whether, under Federal Rule of Criminal Procedure 32.1(b)(2), Mr. Doswell had a right to have the witnesses against him testify.

The government argued that under a prior Fourth Circuit case, and the general principle that revocation hearings are less formal, it didn't have to have a witness there.

Mr. Doswell, instead, suggested the court of appeals look at the language of Rule 32.1(b)(2), which says that at a revocation hearing, a person has

an opportunity to appear, present evidence, and question any adverse witness unless the court determines that the interest of justice does not require the witness to appear

Since the district court spent exactly no time balancing whether the interests of justice didn't require the chemist to testify against Mr. Doswell, the Fourth Circuit reversed the finding of violation and remanded.

Big congratulations to the defense lawyer on appeal, Joanna Silver! Way to ask the court to please read the law.

[FN1] - I know, they call the people who supervise folks on supervised release "Probation Officers" even though it's supervised release. I suppose "Supervised Release Officer" is too specialized a title or something.

August 24, 2011

The Seventh Circuit Reverses - Judge Posner Would Like To See More Explanation

Judge Richard Posner is sui generis. The Seventh Circuit judge is a towering legal intellectual. He writes on moral theory. He founded a journal. He writes about current political controversies. He is one of the few intellectuals of our time who has "changed the world" according to Tyler Cowen - unlike such slouches as Paul Krugman, Richard Dawkins, and Noam Chomsky. He's lectured in Second Life. He even blogs for the Atlantic.

He has been called "the world's most distinguished legal scholar."

He is also, most importantly, a serious bluebook hater (apologies that the link just goes to the first page of the article at JSTOR - though what a great first page it is. My favorite line comes later as advice to law students - "Make certitude the test for certainty." It summarizes so cleanly what's wrong with so much legal writing.).

One can empathize with a district court judge who has a case being appealed to a panel with Judge Posner. Here you sit, busier than you'd ever want to be. You're underpaid relative to what you could make in the private sector. You have an ever-growing caseload, particularly as Obama fails to get judges confirmed at rates like past presidents. Then this intellectual - who sleeps, what, 45 minutes a night? - comes picking at your work. It has to be hard.

So, for that reason, I have some empathy for the district court judge in United States v. Robertson.

Mr. Robertson pled guilty to growing marijuana plants. He was convicted and sent to prison for ten years. When he was released, he was on supervised release for eight years.

Shortly before his supervised release was to end, he was charged with growing marijuana plants. He went before the same judge for sentencing on the new marijuana plant charge that he had before.

The district court was unhappy to see Mr. Robertson again.

He sentenced Mr. Robertson on his new charge to 30 months in prison (I assume based on the number of plants he was growing). Then he turned to sentencing for the supervised release violation.

Sentencing on a supervised release violation is always tricky. The person being sentenced has already been before the judge. He's already gotten a second chance, and he's blown it. He's asking, often, for a second second chance. It can be a tough sell.

The guidelines suggest that a sentence of 12 to 18 months would be appropriate. The district court imposed a sentence of 34 months.

The district judge asked Mr. Robertson why he was still growing marijuana after spending eight years in prison. Mr. Robertson replied that "he just liked the way the plant looked" and that he "liked to smoke it." The district court suggested that, perhaps, he could take up "growing gardenias."

(In fairness, that suggestion really didn't take into account that Mr. Robertson likes to smoke his crops.)

The district court repeated that it was unhappy to see Mr. Robertson again. It them imposed sentence.

Judge Posner, the prolific explainer of legal theories, was unimpressed.

Noting that a judge sentencing a person for a supervised release gets the largest possible amount of deference from an appeals court, Judge Posner held that the district court did not provide enough explanation of its sentence.

As Judge Posner said,

We cannot brush off the appeal on the ground that of course the district judge knows the statutory sentencing factors and the relevant Guideline provisions and so he must have had a good reason for imposing a sentence almost twice as long as the maximum recommended by the Sentencing Commission (34 months versus 18 months). If that response to his appeal were proper, a judge would never have to give a reason for a sentence that was within the sentencing range set by Congress. Anyway what a busy judge knows is not always present to his mind.

(sarcastic emphasis in original)

Clearly, the district court judge should have explained his sentence. One of the central values of a reasoned process in our courts is that the providing of reasons for a judges action is what gives them legitimacy. It's the inverse of the silence we foist on to defendants. Yet Mr. Anderson didn't get the benefit of that reasoned explanation.

Still. One suspects that, perhaps, Judge Posner realizes how much explanation he would have given if he were the judge imposing sentence.