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August 21, 2012

A Sad Bank Robber Attracts A Lower Sentence With Honey Than He Would Have With Vinegar

James Wooten was on hard times.

As he later told the police, he was just sick of living in his car and running out of money.

He went into a bank. As the Sixth Circuit in United States v. Wooten, tells it:

[B]ank teller Buddy Mason recalled the circumstances of the September 23 robbery. According to Mason, the robbery began after Wooten walked "casually" into the bank and approached the teller row. Wooten, who was fifty-six years old at the time, wore ordinary clothing and appeared to Mason to be a routine customer. After entering, Wooten strolled over and placed one hand on the counter. According to Mason, Wooten was "not looking around or fidgeting or looking at anything" and his demeanor was "nonchalant." After motioning for Mason to lean in closer, Wooten "kind of whispered and said, I am going to rob you." Mason at first thought Wooten was "joking around." Indeed, Mason recalled that he was "not taking [the robbery] very seriously because [Wooten] was just so nonthreatening." With prompting from Mason, Wooten repeated the statement "I am going to rob you," and Mason again questioned the sincerity of Wooten's request. At that point, Wooten "kind of got a serious look in his face" and said, "I have a gun, I want your money."

1342748_bank.jpgBank Robberies are common enough that banks give their tellers training on how to respond if they get robbed. After Mr. Mason heard from Mr. Wooten that he had a gun, Mr. Mason turned and picked up a stack of bills.

Mr. Wooten took the money and walked out of the bank.

He was caught by the police a few blocks later - that's when he said he robbed a bank because he didn't want to live in his car. He didn't have a gun with him.

At Mr. Wooten's sentencing hearing, the teller - Mr. Mason - said that:

Wooten "was not acting like he was going to hurt me or anybody in the bank." In fact, even though Wooten had told Mason that he had a gun, Mason said he "never felt threatened at all."

Mr. Wooten pled guilty. At sentencing, the fight was whether Mr. Wooten should be subject to a "threat of death" enhancement.

If a person commits a robbery and threatens to kill someone, that's seen as worse under the sentencing guidelines and the person gets an increase under section 2B3.1(b)(2)(F).

The district court applied the enhancement, finding that a reasonable person meeting the meek 50 year old Mr. Wooten, who was reluctantly robbing a bank to escape living in his car, would have to fear for his life.

The Sixth Circuit disagreed.

while the statement "I have a gun" certainly can be enough to support the threat-of-death enhancement--and in the majority of cases it is--the statement is not necessarily enough, especially when contextual circumstances undermine the otherwise threatening nature of the declaration.

This is hopeful for Mr. Wooten - saying that you have a gun does not always mean that you are saying you're going to use it. Sometimes you have to say you have a gun just to get someone to treat your situation like a robbery and give you the money that they're trained to hand over.

Although unusual, one can envision circumstances in which the nature of a robbery makes it objectively unreasonable for a victim of ordinary intelligence to believe that the robber, even if claiming to have a gun, has any intent or ability to carry out a violent act. An offender who walks into a bank waving a banana or what is plainly a toy gun, for instance, would not instill a fear of death in a reasonable person, even if the offender emphatically announced his possession of a gun. Cf. Jennings, 439 F.3d at 611 (surmising "that there could be circumstances that would sufficiently dilute the phrase 'I have a gun' so that it would not qualify as a death threat," such as where "a bank robber claimed to have a gun but brandished what was quite obviously a toy"); Gibson, 155 F.3d at 847 (stating that "I have a gun," constitutes a threat of death unless "unusual mitigating circumstances accompanying this statement could deprive the words of their ordinary and expected meaning" (internal quotation marks omitted)). Because such circumstances would fall short of instilling a fear of death in a reasonable victim of the offense, the threat-of-death enhancement would not be warranted.

The Sixth Circuit reversed and remanded - Mr. Wooten didn't threaten to kill anyone.

May 28, 2012

The Sixth Circuit Says That If You Plead Guilty To An Indictment You Don't Plead Guilty To All The Extra Bad Stuff The Government Put In The Indictment


Michael Louchart sold some guns. They were stolen and he knew it.

The feds caught up to him and charged him with conspiracy to steal firearms and with receiving and selling stolen firearms, each of which violated 18 U.S.C. § 922. In the indictment, the government said that Mr. Louchart was involved in the theft of more than 75 firearms.

It's not a coincidence that if a person steals more than 75 firearms they are then eligible for a sentencing enhancement under the sentencing guidelines.

Mr. Louchart didn't like his chances at trial. He entered a plea of guilty to the indictment, without a plea agreement.

1329263_pistol.jpgAt his plea hearing, the district court asked him what he did that made him guilty. Mr. Louchart said:

Well, a couple guys I know of brought me some guns, 13 revolvers and three long guns, and I sold them. And I knew they were stolen.

No one asked M. Louchart how many guns were stolen.

The presentence report assessed an increase in Mr. Louchart's proposed sentencing guidelines range, saying that he pled guilty to an indictment that said his crime involved more than 75 guns.

Mr. Louchart objected - he said he didn't say anything about any 75 guns.

The government put on no evidence of the number of guns, but relied on the fact that Mr. Louchart pled guilty to the indictment and the indictment said there were more than 75 guns.

The district court agreed, and applied the enhancement based on Mr. Louchart having participated in a conspiracy to steal guns with more than 75 guns.

Mr. Louchart appealed to the Sixth Circuit and, in United States v. Louchart, the Sixth Circuit reversed.

While, of course, the government can put on evidence to support a sentencing enhancement, and if it proves that the enhancement applies by a preponderance of the evidence, then an enhancement that a person being sentenced didn't admit to would apply. So admitting the facts supporting an enhancement under the sentencing guidelines isn't required to jack up a person's sentence.

As the court of appeals said,

To the extent that Louchart argues that he can be held accountable at sentencing only for the 17 guns that he admits possessing and selling, the law does not support such a limit. A district court may enhance a sentence based on relevant conduct so long as its factual findings are supported by a preponderance of the evidence and the sentence imposed does not exceed the statutory maximum.

But that's a separate issue.

The question, really, is whether Mr. Louchart admitted the number of guns in the indictment when he admitted that he was guilty of the offense charged there.

And the answer to that question is no.

As the Sixth Circuit explained,

Louchart's guilty plea, however, should not have been treated as an admission of the quantity of firearms stated in the indictment. The quantity of firearms involved was not an element of the offense, and the quantity of firearms alleged in the indictment was not admitted by Louchart at the plea hearing or in a plea agreement. Admission of facts from a guilty plea is limited to elements of the crime charged or those explicitly admitted to by the defendant. The Supreme Court for instance has carefully stated the scope of a guilty plea admission: "a guilty plea is an admission of all the elements of a formal criminal charge." McCarthy v. United Sates, 394 U.S. 459, 466 (1969) (emphasis added). The Supreme Court has also described guilty pleas as "comprehend[ing] all of the factual and legal elements necessary to sustain a binding, final judgment of guilt and a lawful sentence." United States v. Broce, 488 U.S. 563, 569 (1989) (emphasis added). This limited language strongly suggests that a guilty plea does not constitute an admission of facts included in an indictment when those facts were not necessary to sustain a conviction. It follows that these facts cannot be used to increase a defendant's sentence without the district court's first determining that the facts are supported by a preponderance of the evidence.

And, for those who practice outside of the Sixth Circuit, there's a nice survey of cases from around the federal appellate courts on this question.

Because Mr. Louchart didn't admit the number of guns, just that he met the elements, his case was remanded for resentencing.

May 17, 2012

Why It Is Probably Better To Pick Up The Phone of Someone You've Shot Than To Take Their Phone At Gunpoint Then Shoot Them

Someone shot Eric Davis. He wasn't hurt badly, but he was mad.

The next day, someone told him that the man who shot him was near a high school. Mr. Davis went to the high school. He saw Octavious Wilkins, and took Mr. Wilkins as the man who shot him.

Mr. Davis, and friends, approached Mr. Wilkins. They had guns drawn.

Two things happened as a result. Mr. Wilkins was shot, and Mr. Davis wound up with Mr. Wilkins' cell phone.

1046664_cell_phone_in_trouble.jpgWhat isn't clear is how Mr. Davis came to possess Mr. Wilkins' phone.

Maybe Mr. Davis threatened Mr. Wilkins with a gun, and demanded his phone, then shot him as he ran away later.

Maybe Mr. Davis threatened Mr. Wilkins, who ran and was shot, then dropped his phone as a result of being shot.

Regardless of which happened, Mr. Davis was charged in state court in North Carolina with common law robbery. He was charged in the United States District Court for the Eastern District of North Carolina with being a felon in possession of ammunition.

His state case moved faster than his federal case, as so often happens. He entered a no contest plea to the robbery charge - he didn't admit that he did it, just that he wouldn't contest it.

He was sentenced to between 14 and 17 months in prison on the state robbery charge.

He also entered a plea to the federal charge. Because possessing ammunition is clearly more than five times worse than robbing someone, Mr. Davis's sentence in federal court was more than five times longer - 108 months.

In sentencing him, the district court had to decide if his guidelines range would be raised because he used the gun in connection with a robbery.

If he used the gun in connection with a robbery, his range would be 120 months (or, more accurately, it should have been 121-151 months, but the statutory mandatory minimum of ten years means that it is effectively 120 months).

If he used the gun in connection with, say, assault - shooting someone else without necessarily intending to take their stuff - then his range would be 46 to 57 months.

So, if Mr. Davis pointed a gun at Mr. Wilkins, demanded his phone, and took it - then it looks like that's clearly robbery.

If Mr. Davis shot Mr. Williams then picked up his phone when he dropped it, that looks a little more like assault.

The district court tried to avoid this factual question. Instead, it focused on the fact that Mr. Davis was convicted of robbery in state court. The district court was uninterested in the detail that Mr. Davis's conviction was the result of a no contest plea.

The Fourth Circuit, in United States v. Davis, held that the district court should have been more interested in the basis for the plea in state court, saying

we hold that Davis's 'no contest' plea to common law robbery could not alone provide the necessary evidentiary basis to support application of the robbery cross-reference. What is necessary is factfinding regarding Davis's conduct. If Davis is to be sentenced as if he committed, not just the passive, status offense of unlawful possession of a single round of ammunition, but a robbery, the Sentencing Reform Act requires that the sentencing court make the findings necessary to justify such a result.

Ok, fair enough - the district court was wrong to rely on the fact of a conviction based on a no contest plea.

On remand, the district court will have to look at the evidence of what happened - when did Mr. Davis take Mr. Wilkins' phone?

It may be that whatever Mr. Davis did to get possession of Mr. Wilkins' phone is robbery in North Carolina. After canvassing some of the cases, the court of appeals noted that:

we discover that North Carolina law is predictably nuanced in situations where property is taken during or following a violent altercation that is motivated by reasons entirely unconnected to the purloined property itself.

However, resolving this question, the Fourth Circuit determined, was not its job. Rather, the court of appeals observed that

the parties seek to draw us into a nice dispute over the proper interpretation of the North Carolina law of common law robbery. But that is a dispute to be properly resolved by the district court in the first instance, which has not happened here. Even more fundamentally in our judgment, the correct application of the guidelines in this case hinges on factual determinations, which are also for the district court to make.

The case was, therefore, remanded for resentencing.

Funny, though, that the court that sentenced Mr. Davis for the conduct at issue - the North Carolina state court - gave him a sentence so much lower than whichever sentence he winds up with in federal court.

March 29, 2012

Statutory Rape Is Not A Crime Of Violence

As frequent readers of this blog know, the Armed Career Criminal Act gets a lot of appellate attention.

Simply put, if you've been previously convicted of a felony, and you're found with a gun, that's a federal crime. Normally, the most you can get for that crime is 10 years.

But, under the Armed Career Criminal Act, if you have three prior convictions for either a crime of violence or a drug distribution offense, then you face a mandatory minimum sentence of 15 years, and a maximum sentence of life.

That's a big change.

673264_hammer_to_fall.jpgAs I've written about before (here from the Ninth Circuit, here from the Fourth Circuit, here from the Eighth Circuit, and in two places from the Sixth Circuit, here and here, to suggest a few places to look), what counts as a "crime of violence" is really miles away from clear.

In short, the Armed Career Criminal Act is a mess. What counts as a qualifying predicate offense is light years from clear. And it's a mess that is causing thousands of additional years of prison time for people.

But don't take my word on it; the New York Times recently had an editorial about how wrong the ACCA is.

The New York Times writes that,

Justice Antonin Scalia has called this federal statute unconstitutional because some of its language is so vague that it "permits, indeed invites, arbitrary enforcement." In dissenting in a case last year, he wrote, "Many years of prison hinge on whether a crime falls within" the act.

The Eleventh Circuit addressed whether statutory rape counts as a "crime of violence" under the ACCA in United States v. Owens.

Statutory rape, basically, is the crime of having sex with someone who is too young to consent by law. In Alabama, the state law that matters in Owens, the age of consent is generally 16.

Mr. Owens was previously convicted, many times, for having sex with someone between the ages of 12 and 16 (we know the person was older than 12, because he was convicted of an offense with that age range - presumably having sex with someone younger than 12 has its own separate statutory section, and is punished more severely.

After picking up his statutory rape convictions, Mr. Owens was convicted of being a felon in possession of a firearm.

So, the question is - is statutory rape a crime of violence?

Initially, the Eleventh Circuit said yes. The court of appeals held that statutory rape involves the use of force on the person of another. Here's how the court summarized its conclusion from the prior opinion:

We explained that "the plain meaning of 'physical force' is power, violence, or pressure directed against a person consisting in a physical act." In interpreting the term "physical force" . . . , we noted that "a person cannot engage in nonconsensual sexual penetration with another without exerting some level of physical force." Because under Alabama law second-degree rape is sexual intercourse with a person incapable of consenting to the act, we concluded "that a second degree rape conviction under Alabama law must involve the use of physical force against the person of another."

There's a tidy bit of equivocation on the word "consent" between the second sentence and the third - a fifteen-year old can "consent" in the sense of the second sentence in a way that he can't in the third - but you get the court's idea.

Then the Supreme Court decided Johnson v. United States. As the Eleventh Circuit described the Court's reasoning in Johnson:

The Court reasoned that because "context determines meaning," the phrase "physical force" as used in the statutory definition of violent felony "means violent force - that is, force capable of causing physical pain or injury to another person." The word "violent" connotes "a substantial degree of force," and the implication of "strong physical force" is made even more pellucid by its attachment to the word "felony." "[T]he term 'physical force' itself normally connotes force strong enough to constitute 'power'-and all the more so when it is contained in a definition of 'violent felony.'" Thus, the Court concluded that battery under Florida law did not satisfy the definition of "violent felony"
So, for something to be a crime of violence, it necessarily, after Johnson, has to include violence.

In light of Johnson, the Eleventh Circuit's prior holding in Owens was remanded and the Eleventh Circuit considered it again.

On remand, the Eleventh Circuit changed course.

For this court to uphold Owens's sentence, we would have to conclude [statutory rape] "inherently poses a serious potential risk of physical injury to another" and consequently "qualifies as a crime of violence["] comports with the Johnson Court's definition of "violent felony" under the ACCA. We would be intellectually dishonest if we decided that in the affirmative.

The court of appeals noted that to secure a conviction for statutory rape

the government need only show that the offender is 16 years old or older and engaged in sexual intercourse with a person of the opposite sex who is between the ages of 12 and 16, without legal capacity to consent. See Ala. Code § 13A-6-62. The government is not required to show forcible compulsion

Since violence isn't required for statutory rape to be committed, statutory rape is not a crime of violence.

Mr. Owens is going back for resentencing.

March 14, 2012

Why You Should Screen The People You Smoke Marijuana On A Porch With

Two guys are sitting on a porch in Memphis on a July night. They share some conversation and a little bit of marijuana.

Three and a half years later, the Sixth Circuit wrote about that night in United States v. Shields.

Kevin Shields stopped by to visit Eugene Moore on his mother's porch. Earlier that night, Mr. Shields had been seen with a handgun in his waistband by a Memphis police officer.

1110747_front_porch.jpgWhen the police saw him on the porch, they made eye contact. Mr. Shields then threw the gun into the bushes off the porch.

This is a nice move by Mr. Shields - not only does it confirm that he has the gun, it makes any Fourth Amendment argument harder later, since he likely abandoned it.

But I digress.

As Mr. Shields was being taken to the police car, he said to the officers that he forgot his wallet on the porch. The officers, obligingly, walked him back to the porch where they found the wallet. It was next to a bag that contained marijuana and cocaine residue.

Mr. Shields pled guilty to being a felon in possession of a firearm.

The sentencing guidelines for being a felon in possession of a firearm are in section 2K2.1.

Section 2K2.1(b)(6) says that a person's offense level should increase by four levels if they had the gun in order to further some other felony activity. Four levels, of course, is a pretty big bump on the sentencing table.

The government argued that Mr. Shields' offense level should be increased by four levels under 2K2.1(b)(6) because of the marijuana.

Under Tennessee law, apparently, for someone with Mr. Shields's criminal history, simple possession of marijuana is a felony.

Mr. Shields didn't agree with this. The issue went to a contested sentencing hearing.

At the hearing, the former porch buddies gave different versions of what happened that night.

Mr. Moore was a government witness. He said that he was sitting on the porch when Mr. Shields walked up with liquor, a large bottle of beer, and marijuana. Mr. Shields offered some marijuana to Mr. Moore, who testified that he preferred to abstain.

Mr. Shields, on the other hand, said that he walked up to the porch where Mr. Moore offered him some marijuana. Mr. Moore, however, was out of rolling papers, and Mr. Shields offered to share his.

Mr. Shields, unfortunately, also admitted that he had smoked marijuana in the past and that he had a problem with it.

The district court, applying a preponderance of the evidence standard, found that the marijuana was Mr. Shields'. The sentencing court said,

This is not one of those cases where [the Government] presented overwhelming evidence on it, they just presented a lot of evidence, and it seems to accumulate in such a way as to lead to the conclusion that because of the proximity, because of the timing, because of the other evidence which indicates that you did have a marijuana problem that you would have carried some marijuana with you.

It's always something to see a preponderance of the evidence standard in action.

The sentencing court assessed Mr. Shields the four-level enhancement and sentenced him to two months below the bottom of the sentencing guidelines range.

On appeal, the Sixth Circuit noticed that 2K2.1(b)(6) - the "have a gun in furtherance of another felony" provision is different than a "have a gun while committing another felony" enhancement.

The court of appeals held that there wasn't any evidence that Mr. Shields possessed the gun to help him with the marijuana smoking - he didn't use the gun to roll a joint, for example.

Because there was no connection, other than bad timing, between Mr. Shields' gun possession and the marijuana possession that the district court found, the Sixth Circuit determined that the enhancement did not apply. It sent the case back for a new sentencing hearing.

January 23, 2012

Guns and Weed: The Fourth Circuit Remands on the Second Amendment for Marijuana Users


Like many Americans, Benjamin Carter liked to smoke marijuana. He also lived in a bad neighborhood, and worried about being the victim of crime.

Even though 18 U.S.C. § 922(g)(3) says that it is a crime for any person "who is an unlawful user of or addicted to any controlled substance" to possess a firearm, Mr. Carter did just that.

52691_marijuana_plant.jpgWhen the government found out about his guns and his marijuana habit, they charged him violating section 922(g)(3).

He challenged whether section 922(g)(3) can lawfully apply to someone like himself. The district court did not accept his challenge to the statute.

He pled guilty and went to the Fourth Circuit. Today, in United States v. Carter, the Fourth Circuit remanded the case, saying that the government has to do more work to show that it can constitutionally prevent potheads from possessing a gun.

Of course, after the Supreme Court's decision in District of Columbia v. Heller, our right to have a weapon enjoys more protection than it did just a few years ago.

Justice Scalia in Heller did observe that,

nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

Nonetheless, the Supreme Court did interpret the Second Amendment as protecting a person's right to possess a gun.

Mr. Carter argued to the Fourth Circuit that,

Acknowledging that he is a user of marijuana, he contends that he was nonetheless entitled, under the Second Amendment, to purchase the guns for the lawful purpose of protecting himself and his nephew in his home against those who might intrude. And because the right of self-defense in the home is the "central component" of the Second Amendment protection, Heller, 554 U.S. at 599, and is "fundamental" and "necessary to our system of ordered liberty.

For that reason, because his right to have a gun is most protected when he's having the gun to protect his house, Mr. Carter argued he should be able to have the gun, despite his marijuana use. Mr. Carter, though, "challenges the link between marijuana usage and gun violence."

The Fourth Circuit was inclined to go halfway with Mr. Carter. Bemoaning that

[i]n developing its record in this case, the government has chosen not to rely on academic research or other empirical data to demonstrate the connection between drug use and gun violence, even though such evidence is abundantly available

the court of appeals noted that

the government still bears the burden of showing that § 922(g)(3)'s limited imposition on Second Amendment rights proportionately advances the goal of preventing gun violence. And we conclude that in this case, the record it made is insufficient. Without pointing to any study, empirical data, or legislative findings, it merely argued to the district court that the fit was a matter of common sense.

This appeal to common sense, the Fourth Circuit determined, was not sufficient.

The court remanded so that the government could develop a record in the district court to justify section 922(g)(3).

At bottom, we conclude that Congress had an important objective for enacting § 922(g)(3) to reduce gun violence and that disarming drug users and addicts might reasonably serve that objective. But the burden of demonstrating the fit rests on the government. Because the government did not present sufficient evidence to substantiate the fit, we vacate the judgment and remand the case to allow it to do so and to allow Carter to respond.

One suspects that things won't be much different on remand, but, at least, the Fourth Circuit is taking the Second Amendment seriously.

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December 20, 2011

Running From A Courtroom And The Armed Career Criminal Act

The Armed Career Criminal Act creates more absurd law than any part of the American legal system outside of the tax code.

The Sixth Circuit's recent, and short, opinion in United States v. Oaks illustrates the point. It asks the question we've never needed answering before - is running out of a courtroom a violent act?

It turns out that it isn't.

920501_shoe-string_sands.jpgBackground on the Armed Career Criminal Act

If you are caught with a gun and you have a prior felony conviction, the most amount of time you can be sentenced to spend in prison is 10 years and, odds are, your sentencing guidelines range would be much lower.

If, however, you have been previously convicted of a felony crime of violence or a drug distribution offense three times in your past, then your mandatory minimum sentence is 15 years. And your statutory maximum sentence is life.

Mr. Oaks

Mr. Oaks pled guilty to possessing a firearm after a felony conviction. [FN1] He had two prior convictions for either drug distribution offenses or crimes of violence. He also had a prior conviction for felony escape.

Mr. Oaks felony escape conviction arose out of his escape from a courtroom where he was awaiting a hearing on robbery and burglary charges.

The district court determined that this escape conviction was a crime of violence.

Mr. Oaks appealed.

The Sixth Circuit affirmed.

Mr. Oaks filed a petition for certiorari to the Supreme Court.

The Supreme Court and Mr. Oaks

The Supreme Court GVR'd - it granted cert, vacated the Sixth Circuit's judgment, and remanded to the Sixth Circuit in light of Chambers v. United States. (see SCOTUSBlog coverage here)

Chambers dealt with whether escape which arises out of a failure to report is a violent felony.

It's a little astounding that this is even a question - the actual thing that a defendant does can be as passive as sitting on his couch watching TV and eating potato chips while he's supposed to be elsewhere. Aside from the violence to his own cholesterol level, this does not seem to be a violent act.

Happily, a unanimous Supreme Court held that failure to report is not a crime of violence for Armed Career Criminal Act purposes. In reaching that conclusion, the Court looked at a United States Sentencing Commission report on failure to report crimes, and noted that in 160 cases, not once did a failure to report lead to a fight with law enforcement.

And they say watching TV is bad for you.

After The Supreme Court's Remand

In light of the Supreme Court's remand in Mr. Oaks's case, the Sixth Circuit remanded to the district court for more fact-finding about what the details of the felony escape were to determine if it was really a crime of violence.

The district court found that,

first, it appears from the uncontroverted facts that at the time of the felony escape, Oaks was being held in law enforcement custody in the county jail on felony charges of evading arrest, felony reckless endangerment, attempted aggravated robbery, theft over $500.00 and aggravated burglary, but had been taken to a courtroom for a court appearance at the time he ran from the courtroom; secondly, while the county jail was a secure facility, the courtroom from which Oaks ran was not.

Based on this, the Sixth Circuit determined that escape from a courthouse is not a crime of violence.

Looking at the same Sentencing Commission report, the Sixth Circuit noted that in 171 cases of escape from "nonsecure custody" only 1.7% resulted in some kind of injury. That percentage, the Sixth Circuit found, is simply too low to call this a violent offense.

Interestingly, there's a dissent, which questions whether a courtroom is really an escape from nonsecure custody, or, rather, is an escape from the custody of law enforcement personnel. If so, the percentages are a little violenter.[FN2] I would suspect that the United States Marshals Service would also question the majority's determination that escape from a courtroom is not escape from law enforcement custody.

That said, it's a happy result for Mr. Oaks.

[FN1] - Actually, what the opinion says, quoting a prior Sixth Circuit opinion in this case, is that he "pleaded" guilty. Gentle readers, I find that word awkward. In my legal writing, I am too often called upon to use the past tense of plead in connection with a determination of a person's guilt. I prefer to use "pled" rather than "pleaded." The Sixth Circuit disagrees. Am I wrong? Has Bryan Garner opined on this?

[FN2] Please don't tell Bryan Garner I made up the word "violenter."

October 12, 2011

An En Banc Fourth Circuit Remands On An Armed Career Criminal Act Case

The Fourth Circuit doesn't issue many published opinions. When it does publish, though, it publishes a lot.

The Fourth Circuit yesterday issued an en banc opinion in United States v. Vann. Here's the description of who wrote what:

A per curiam opinion, in which Chief Judge Traxler and Judges Motz, King, Gregory, Agee, Davis, Keenan, Wynn, and Diaz joined, was issued on behalf of the en banc majority. Judge King wrote a concurring opinion, in which Judges Motz, Gregory, and Davis joined. Judge Agee wrote an opinion concurring in the judgment, concurring in the en banc majority opinion, and concurring in the opinion of Judge Keenan. Judge Davis wrote a concurring opinion. Judge Keenan wrote a concurring opinion, in which Chief Judge Traxler and Judges Agee, Wynn, and Diaz joined. Judge Wilkinson wrote an opinion concurring in the judgment. Judge Niemeyer wrote an opinion concurring in part and dissenting in part, in which Judge Shedd joined.

That's seven separate opinions, for a court that only has fourteen active members (and Judge Allyson Duncan didn't participate in the appeal). The opinions total 100 pages in length.

The question in Mr. Vann's case is a commonly occurring one. If a person is convicted of having a firearm after being convicted of a felony, the person faces a statutory maximum penalty of 10 years. See 18 U.S.C. § 922(g). If however, the person has three separate prior convictions for drug distribution offenses or crimes of violence, then the statutory maximum becomes life in prison, and there is a mandatory minimum of 15 years that applies.

The enhancement is called the Armed Career Criminal Act, and I've written about it here and here and here.

Mr. Vann's case presents a frustrating and common problem with the Armed Career Criminal Act. State laws aren't defined as crimes of violence for federal purposes. The states kind of make their own criminal laws, and tend not to modify them to make later federal sentencings easier. Moreover, when folks are resolving a state case, they tend to resolve it for that case only, so everyone can go on about their business and on to the next case. So, sometimes, the records aren't sparkling clear as to how things were resolved.

Mr. Vann was convicted of being a felon in possession of a firearm. He had three prior convictions under North Carolina's Indecent Liberties Statute. The statute has two prohibitions:

(a) A person is guilty of taking indecent liberties with children if, being 16 years of age or more and at least five years older than the child in question, he either:

(1) Willfully takes or attempts to take any immoral, improper, or indecent liberties with any child of either sex under the age of 16 years for the purpose of arousing or gratifying sexual desire ["subsection (a)(1)"]; or

(2) Willfully commits or attempts to commit any lewd or lascivious act upon or with the body or any part or member of the body of any child of either sex under the age of 16 years ["subsection (a)(2)"].


If Mr. Vann violated section (a)(1), it isn't a crime of violence (necessarily); if he violated (a)(2), it is.

The trouble is that Mr. Vann entered a guilty plea in the state case to an indictment that accused him of both (a)(1) and (a)(2). So, is that a plea to the lesser of the two, or the more serious of the two? Or both?

Judge Niemeyer, in dissent, said that when a person pleads to an indictment that alleges Y and Z, the person pleads to both charges. This is familiar enough to anyone who has taken an intro to logic class in college.

But, natural language is funny, and not always a friend to the logician. To walk down a path not directly related to Mr. Vann, as the University of California, Irvine's logic wiki points out,

It's also worth noting that some English sentences carry some meaning that is not captured in Propositional Logic. For example, the sentence 'Jane Austen died and was buried in Winchester Cathedral in 1817' can be translated as P [and] Q (where P stands for 'Jane Austen died' and Q stands for 'Jane Austen was buried in Winchester Cathedral in 1817'). Now, since P [and] Q and Q [and] P are logically equivalent, they mean the same thing. However, the English sentence 'Jane Austen was buried in Winchester Cathedral in 1817 and died' implies that she was buried alive!

Whew! That's a good one.

Back to Mr. Vann. The question before the court of appeals was this - When a person pleads guilty to an indictment, are they pleading guilty to all parts of it, or can they be pleading guilty to the bare minimum that satisfies an offense charged in the indictment?

The en banc opinion of the court of appeals determined that they are pleading guilty to the bare minimum.

As the appeals court held,

That Vann's predicate charging documents properly use the conjunctive term 'and,' rather than the disjunctive 'or,' does not mean that Vann 'necessarily' pleaded guilty to subsection (a)(2). Similarly, in trials by jury, it has been established that a defendant convicted under a conjunctively charged indictment cannot be sentenced -- in the absence of a special verdict identifying the factual bases for conviction -- to a term of imprisonment exceeding the statutory maximum for the 'least-punished' of the disjunctive statutory conduct.

Because a finding of guilt that is ambiguous between two is read to mean that the person is guilty of the least significant offense for jury purposes, it is read the same way for a plea.


September 7, 2011

How The Eighth Circuit Saved Christmas

Legislators like to punish repeat offenders. That's just good politics - "Mike Sloss puts repeat offenders behind bars" sounds better than "Mike Sloss has a balanced policy on recidivism" when put on a bumper sticker.

So it isn't surprising that the Armed Career Criminal Act, located at 18 U.S.C. S 924(e)(1), jacks up the penalties for a person convicted of being a felon in possession of a firearm if the person who is convicted has at least three prior convictions for drug dealing or a violent crime.

In a nod to fairness, though, Congress does require that those prior convictions be committed "on occasions different from one another."

What counts as an "occasion" though? The Eighth Circuit, in United States v. Willoughby, faced exactly that question.

Mr. Willoughby pled guilty to being a felon in possession of a firearm. At sentencing, the district court had to figure out if one of Mr. Willoughby's prior convictions counted as one prior conviction, or as two. He had been convicted of two counts of conduct in the one previous case.

According to the police report in the prior case, an undercover cop went with a confidential information to Mr. Willoughby's house. The affidavit in support of the complaint said that when the officer and CI got there,

Michael Willoughby was sitting in a chair in the northeast corner of the living room. . . . Willoughby was wearing a tan/off white t-shirt and blue jeans. He was also wearing red suspenders hanging down by his legs. These are commonly referred to as ["]braces["] by Neonazi/skinhead groups.

Undeterred by the menacing "braces", the law enforcement officer and the CI asked Mr. Willoughby if they could by drugs. Willoughby left the room to get some drugs.

When Willoughby returned to the living room he had two sandwich bags containing a green leafy substance in his hand. He started to give both to the C/I. I held out my left hand. Willoughby gave one to the C/I then gave one to me. The C/I gave Willoughby the $25 I gave him. I gave Willoughby $50. I smelled the contents of the bag Willoughby gave me. It smelled and looked like marijuana. We immediately left the house.

The district court found that this course of conduct was actually two different "occasions." Because handing the drugs to the undercover cop was a different "occasion" than handing drugs to the CI, this transaction gave rise to two drug offenses. Willoughby was, therefore, determined to be an Armed Career Criminal. As a result, he faced a mandatory minimum sentence of fifteen years.

If Willoughby had handed all the drugs to the CI, perhaps it would have been one "occasion." But that quarter of a second between when the CI took the drugs and when the undercover cop did, Willoughby restarted the "occasion" clock, according to the sentencing judge.

So many "occasions"

This makes me wonder what holidays, and other special "occasions", are like at the district judge's house. Personally, I like special "occasions" because they're a time with family. Hearing of the district court's approach to the term "occasion" in our shared language, though, makes me think that I'm wrong.

Apparently, at Thanksgiving, when I take a piece of turkey, it's a different "occasion" than when I take the mashed potatoes. And there's no "occasion" where I get to eat with my family all gathered together - by the time my dad takes his food, it's already a different "occasion" than when my son did.

No wonder so many people feel lonely around the holidays.

Happily, the Eighth Circuit rejected an interpretation of "occasion" that leads to such isolation.

The Eighth Circuit held that Willoughby's drug dealing was a single "occasion" because "the sale was, in actuality, one 'continuous course of conduct.'"

There are strict limits, though, to what counts as one "occasion" even for the Eighth Circuit. The court of appeals explained

"'[c]rimes occurring even minutes apart can qualify [as separate 'occasions'] if they have different victims,' thereby reflecting a lack of substantive continuity, 'and are committed in different locations,'

As guidance for the holidays, I think that means that if your dad and brother go out to the radial-arm saw in the garage to have a cigar and a glass of cognac, they aren't celebrating the same special "occasion" as the folks inside still finishing off the pecan pie. At least according to the Eighth Circuit.

Though that result, at least, seems consistent with my own intuitions.

August 15, 2011

The Sixth Circuit on Alford Pleas and the Armed Career Criminal Act

Criminal history is important and complicated.

As I explained before, if someone commits a crime of violence, and then is facing sentence for another crime later, their sentence can be significantly increased because of that prior violent crime.

The discussion in my prior post about what counts as a crime of violence is important for understanding the recent Sixth Circuit ruling in United States v. McMurray.

To make a long story short, if a state crime is not always a crime of violence, then, if a person is convicted of it, it only counts as a crime of violence if the court documents from the prior conviction conclusively establish that what the person did was a crime of violence.

In McMurray, Mr. McMurray had a prior conviction for aggravated assault under Tennessee law. Tennessee defines aggravated assault as:

Committing assault and either (1) causing serious bodily injury, or (2) using or displaying a dangerous weapon*

Assault, in Tennessee is defined as:

(1) Intentionally, knowingly or recklessly causes bodily injury to another;

(2) Intentionally or knowingly causes another to reasonably fear imminent bodily injury; or

(3) Intentionally or knowingly causes physical contact with another and a reasonable person would regard the contact as extremely offensive or provocative.

To be a crime of violence for federal purposes, an offense has to involve the intentional use of force or the threatened use of force. See 18 U.S.C. S 924(e). Because you can violate Tennessee's assault statute by recklessly hurting someone, it doesn't involve any intentional act. So it is possible to violate this statute and not commit a crime of violence under federal law.

Because sometimes a Tennessee aggravated assault is a federal crime of violence, the sentencing court is to look at the court records to see if they conclusively establish that the person pled guilty to something that meets the federal standard.

Here, though, Mr. McMurray entered an Alford plea - he, basically, pled no contest, not guilty. He made no factual admission; he merely consented to a conviction.

The Sixth Circuit said that such a plea cannot be used to support any finding about the facts of what he pled guilty to.

Because there were no facts about what Mr. McMurray pled guilty to in the record sufficient to show that he committed a crime of violence, as the term is used in federal law, his prior conviction for aggravated assault was not properly labeled a crime of violence.

What this meant for Mr. McMurray is that he was not an Armed Career Criminal. Instead of a 15-year mandatory minimum, his new federal conviction for being a felon in possession carried a statutory maximum of ten years.

The case was sent back to the sentencing judge for a new sentence, with the new statutory maximum.

 

* You can also commit aggravated assault in Tennessee if you're a parent and you fail to protect your kids from an aggravated assault, which strikes me as such a tremendously sad thing to think about that I am now going to stop thinking about it.

July 12, 2011

The Tenth Circuit Gives Some Criminal History Relief in a Gun Case

It's ironic in a sense. Some of the most complicated questions of federal criminal law have to do with calculating the way a person's criminal history intersects with the sentencing guidelines in a federal weapons charge. Yet weapons crimes are, themselves, generally unsophisticated. When a very good lawyer on a weapons charge gets paired with a stereotypical gun charge client, it creates odd pairings of super-geeky lawyers and folks who are attracted to the elegant simplicity of a hair trigger.

Which brings us to a reversal for resentencing in an appeal from a federal gun charge. The Tenth Circuit today reversed and remanded for resentencing in a gun case, United States v. Armijo. The basic facts are vanilla -- Armijo was convicted of possessing a gun. He's got a prior felony conviction, so that violates 18 U.S.C. section 922(g). The guidelines for a felon in possession charge depend on the defendant's criminal history. If he has two prior convictions that are either drug distribution charges or crimes of violence, then his guidelines start at a level 24 (assuming we're not talking about a machine gun).

The question is, what counts as a crime of violence? The phrase "crime of violence" is the rabbit-hole into which thousands of hours of attorney time have disappeared (though for a good reason -- the wrong answer from an appellate court can lead to thousands of years of people's lives disappearing into a less pleasant kind of hole).

What counts as a crime of violence doesn't just matter for the felon in possession guidelines. If a person is convicted of being a felon in possession and he's got three crimes of violence in his past, then he's an Armed Career Criminal. An Armed Career Criminal's statutory maximum is life, instead of ten years for a garden-variety felon in possession, and he is facing a mandatory minimum sentence of fifteen years.

So there's a decent amount of law on what convictions count as a crime of violence.

The Tenth Circuit today clarified that manslaughter in Colorado is not a crime of violence. It's an interesting call. On the government's side, manslaughter is specifically listed in the guidelines as an example of a crime of violence (it's in note one of the commentary for section 4B1.2). That seems like kind of a bad starting point for Mr. Armijo.

However, the Tenth Circuit notices that as Colorado defines manslaughter, it requires only recklessness, not a higher intent to actually harm someone. So, the Tenth Circuit concludes, this can't be a crime of violence, if a crime of violence is something that has, as an element, "the use, attempted use, or threatened use of physical force". Such use of force has to be on purpose for it to count as a crime of violence.

In other words, you can't accidentally commit a crime of violence in the Tenth Circuit. (or, as it happens, in the Fourth, see United States v. Peterson, 629 F.3d 432 (4th Cir. 2011).)

If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges or Washington DC federal criminal charges.