The Federal Criminal Appeals Blog

There was only one win in the federal circuits last week, but United States v. Blewett was a whopper - the Sixth Circuit held that the Fair Sentencing Act applies retroactively to people sentenced before it took effect. Here's the best language:

In this case, we hold, inter alia, that the federal judicial perpetuation of the racially discriminatory mandatory minimum crack sentences for those defendants sentenced under the old crack sentencing law, as the government advocates, would violate the Equal Protection Clause, as incorporated into the Fifth Amendment by the doctrine of Bolling v. Sharpe, 347 U.S. 497 (1954) (Fifth Amendment forbids federal racial discrimination in the same way as the Fourteenth Amendment forbids state racial discrimination).

In unrelated news, the New York Times had an excellent editorial (available here subject to the Times kind of annoying content restriction thing - private browsing anyone?) on Brady and criminal discovery.

Here's my favorite part:

It might seem obvious that prosecutors with any sense of fairness would inform a defendant's lawyer of evidence that could be favorable to the defendant's case. But in fact, this principle, known as the Brady rule, has been restricted by subsequent rulings of the court and has been severely weakened by a near complete lack of punishment for prosecutors who flout the rule. The court has also declined to require the disclosure of such evidence during negotiations in plea bargains, which account for about 95 percent of cases.

This is exactly right. The problem is that prosecutors aren't required to follow Brady and turn over evidence that matters if someone is going to plead.

And, prosecutors are allowed to give sweet plea deals that expire before they're required to hand over all the evidence. So, unless defense counsel is aggressive about asking for all the evidence - and the prosecutor is inclined to turn it over - folks have to choose whether to risk going to trial or locking in a plea without being able to meaningfully assess their chances of acquittal.

As the Times points out, an early open file discovery rule would fix that.

So, doubtless, DOJ will get right on that.

To the Victory!

1. United States v. Blewett, Sixth Circuit: Appellants were convicted in crack cocaine cases and sentenced to ten years under the then-applicable mandatory minimum, which was based on the quantity of crack possessed. In 2010, the Fair Sentencing Act substantially reduced crack sentences, including the mandatory minimum imposed in appellants' cases. Because the federal perpetuation of the racially discriminatory mandatory minimum crack sentences for those defendants sentenced under the old law violates the Equal Protection Clause, the Act should apply to all defendants, including those sentenced prior to its passage. For these reasons, appellants' case was remanded for resentencing.

There was only one published criminal case in the federal circuits last week where the defendant won. It's a good case on jury instructions for missing evidence, and the short write up is below.

In other news - I stumbled across this lovely write up of a Medicare Fraud prosecution by a doctor.

I often am talking to people who are amazed at how the federal criminal justice system works when they encounter it for the first time. The article is titled "Is a charting error a federal crime?" (spoiler alert: the author thinks that it is, but shouldn't be)

Many folks in the medical profession who take federal health care benefits observe, as this article does, that

the laws are increasingly designed to deter expensive care of the elderly, and that the judicial system focuses more on procedural rules than on substantive justice.

In the case, a doctor who was under investigation for years was charged with health care fraud. He lost at trial. The article is written by a doctor who went to watch the appellate arguments.

It sounds like things at the argument went well for the doctor - one judge apparently said that the government's position meant that "[a]ny error in any medical record related to a health program could be a federal crime." I'm betting the judge didn't mean that this was a good legal rule.

Though, in the end, the author concludes that

Doctors need to know that anything in the medical record can be used against them -- as can errors by their own million-dollar attorney.

The first part probably isn't literally true, but one can forgive some folks in a highly regulated industry who are, mainly, just trying to help people, for thinking that it is.

To the Victory!

1. United States v. Sivilla, Ninth Circuit: Appellant was convicted of offenses arising out of the discovery of cocaine hidden in the engine manifold of his car. Instead of preserving the car as evidence, it was sold for parts by the government notwithstanding appellant's attorney's requests to preserve it, the prosecutor's pledge to do so, and a court order compelling such action. At trial, the court denied appellant's request that the jury be instructed that the defense was not given a chance to inspect the car because it was not preserved as evidence, despite the court's order to do so. Because the government's poor conduct in failing to preserve the car significantly prejudiced appellant, the court abused its discretion in denying the request for a jury instruction. The case was remanded for a new trial with instructions to grant appellant a remedial jury instruction.

Six new cases from the federal circuits this week. My favorite - a subjective measure, I know - is United States v. Ramirez. Any time a court, even the Ninth Circuit, vacates a drug conspiracy conviction for insufficient evidence it's worth a read.

Last week I posted about a First Circuit case that raised, I thought, a specter of support for jury nullification. Lots of folks responded to that - it turns out that nullification is a popular topic.

On Twitter, I was directed to this recent opinion out of New Mexico on nullification. If you have time, I highly recommend it. It canvasses the history of nullification as an important part of what our criminal justice system is built on then says, basically, no.

I also exchanged a few emails about nullification with a prosecutor friend of mine (yes, I have prosecutor friends, don't tell). He pointed out, rightly, that nullification is not your friend if you're thinking of, say, the Criminal Section of the Civil Rights Division of DOJ going into, say, Alabama, to prosecute hate crimes. Or almost any public corruption trial of a very popular politician. It's a fair point. The interplay between popular sentiment and the rule of law is complicated. And, as soon as cases that raise those kinds of concerns are the majority of the criminal trials in the country, perhaps prohibiting nullification would clearly be good.

To the victories!

1. United States v. Davis, Fourth Circuit: Appellant pled guilty to possession of a stolen firearm and was ordered to pay restitution to reimburse the homeowner from whose home he broke into for the value of the unrecovered firearm and damage caused by the break-in. Because the homeowner is not a victim under the Victim and Witness Protection Act, and because appellant's plea agreement did not include an explicit agreement to pay restitution to a person other than a victim of the offense of conviction, there was no basis to order restitution. This plain error required reversal of the restitution order.

2. United States v. Luna-Acosta, Tenth Circuit: Appellant pled guilty to illegal re-entry into the United States. At sentencing, the district court orally announced a sentence of one year in prison. Five months later, a written judgment was filed imposing a 33-month sentence. Because the court lacked jurisdiction to alter the sentence, the sentence was vacated and the case remanded for the court to enter a new judgment with a one-year sentence.

3. United States v. Mackay, Tenth Circuit: Appellant was convicted of unlawfully prescribing controlled substances and sentenced to 20 years in prison. Although the total sentence was below the advisory guidelines range, it exceeded the statutory maximum sentence on nine counts. Because the judgment was unclear whether the court intended to impose a 20-year sentence on each count, which would have been illegal, the case was remanded to allow the court to clarify the sentence for the record.

4. United States v. Mancuso, Ninth Circuit: Appellant was convicted of possession and distribution of cocaine, as well as two counts of maintaining a drug-involved premises. The distribution conviction was vacated because it joined two or more distinct and separate offenses into a single count. The convictions for maintaining a drug involved premises were vacated because the district court committed plain error by utilizing a "significant purposes" instruction rather than a "primary or principal use" instruction.

5.United States v. Patrick, Sixth Circuit: Appellant pled guilty to drug and firearm charges. At the plea hearing, the judge did not state the mandatory minimum penalty for the firearm charge. Because the court's failure to ensure that appellant understood that he faced a mandatory minimum sentence of five years for the firearm charge affected his substantial rights, the plea was vacated to allow appellant to withdraw his plea.

6. United States v. Ramirez, Ninth Circuit: Appellant was convicted of distribution, possession with intent to distribute, and conspiracy to distribute meth. When viewing the evidence on the conspiracy charge in the light most favorable to the government, the government failed to present sufficient evidence showing that appellant had an agreement with another to distribute meth. As a result, the conspiracy conviction was vacated and the case remanded for the district court to grant a judgment of acquittal on that count and to conform the sentence accordingly.

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!

1. 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).

Last week was a great week for folks appealing a federal conviction.

In United States v. Garrido and again in United States v. Cone fraud convictions were reversed by the Ninth Circuit and the Fourth Circuit. Separately, in the Ninth Circuit, a conviction was reversed and remanded for a Miranda violation in United States v. Barnes.

There was also a bit of news in the continuing budget problems plaguing federal defender's offices - two federal judges wrote a nice op-ed in the Washington Post about the problem.

I was lucky to see Stephen Bright speak at the annual D.C. Judicial Conference on Friday - he was, as one would expect, inspiring. He blamed the current FPD budget woes on the decision to let federal defenders be under the judiciary, instead of be their own independent body.

He also had a nice story about the Attorney General, to mark the 50th anniversary of Gideon, calling a number of folks in the indigent defense community in for a meeting. After acknowledging that there's a crisis in indigent defense in this country, Mr. Holder announced a number of grants that DOJ was going to award to help defense lawyers. Stephen Bright, totaling the amount that was being promised, realized that, at $10 million, it was approximately 10% of what DOJ spends on conferences for prosecutors in a year.

That's change you can believe in.

To the victories!

1. United States v. Barnes, Ninth Circuit: Appellant was convicted of distributing controlled substances. The district court erred in denying his motion to suppress his confession, which was made during a meeting with FBI agents and a parole officer. Because the agents deliberately delayed giving Miranda warnings to induce appellant's cooperation, the warnings that were given were too little, too late. Because the court's failure to suppress the statements, which were central to appellant's conviction, was not harmless, the conviction was reversed.

2. United States v. Cervantes, et al, Fifth Circuit: Appellants Cristobal Cervantes and Luis Alvarez were convicted of, among other things, conspiracy to possess a controlled substance with intent to distribute and possessing a firearm in furtherance of a drug trafficking crime. The district court applied a two-level sentencing enhancement for firearm possession to appellants' conspiracy convictions. This was inappropriate double punishment because they were also separately sentenced for possession of a firearm in charge of a drug trafficking crime. As a result, the sentences were vacated and the case remanded for resentencing.

3. United States v. Cone, Fourth Circuit: Donald Cone and Chun-Yu Zhao were convicted of charges arising out of their scheme to import and sell counterfeit pieces of computer equipment. Because the government's "material alteration" theory of criminal liability did not make what appellants did a crime under the federal statute, Ms. Zhao's substantive counterfeiting charge and money laundering charges, as well as both of appellant's conspiracy charges, were vacated. Because the evidence was insufficient to support Ms. Zhao's conviction for criminal counterfeiting, that conviction was also vacated. For these reasons, appellant's sentences were vacated and the case remanded for resentencing.

4. United States v. Garrido, Ninth Circuit: Albert Robels and George Garrido were convicted of charges arising out of schemes to award city contracts to specific companies. Because their honest services fraud convictions were based on an unconstitutional theory of a failure to disclose a conflict of interest, they were reversed. Because two of Mr. Garrido's convictions were not based on sufficient evidence, those were reversed as well. Mr. Robles' money laundering convictions were reversed because they were based on the flawed honest services fraud convictions.

5. United States v. Hargrove, Sixth Circuit: Appellant pled guilty to possession of child pornography and was ordered by pay restitution. Because the district court erred in ordering restitution under 18 U.S.C.§ 2259 without requiring the government to demonstrate that any of the losses sustained by the victims were proximately caused by appellant's offense, the order was vacated and the case remanded for further proceedings.

6. United States v. Trujillo, Ninth Circuit: Appellant was convicted of conspiracy to possess and possessing with intent to distribute cocaine. The district court erred in denying appellant's second motion under 18 U.S.C. § 3852(c)(2) to reduce his sentence, as there is no jurisdictional bar to entertaining a second motion. Further, the court erred in failing to explain at all its rejection of appellant's arguments based on all of the factors in 18 U.S.C. § 3553(a). For these reasons, the district court's order was vacated and the case remanded.

7. United States v. Zehrung, First Circuit: Appellant pled guilty to violating the federal healthcare fraud statute. Her sentence was enhanced under U.S.S.G. § 3B1.3 for abusing a position of trust. Because the record does not reveal the basis for this enhancement, remand was required for further findings about whether the enhancement applies.

Three opinions are in this week's "short wins" - on restitution calculation, competency in a bank robbery case, and the Fair Sentencing Act.

And, in federal public defender budget news, the New York Times had an editorial last week calling for more sensible funding of the government services required by the Constitution. Here's the best bit:

The right to counsel is already badly battered in state courts, largely because most states grossly underfinance the representation of impoverished defendants. Indigent defense in federal criminal cases has served as an admirable contrast because of the high quality and availability of federal defenders. Now this system is in peril. Federal defenders will not be able to take the time to visit clients in prison or search for facts that could raise doubts about clients' guilt.

Budget cuts hit every part of the federal government, as we know. Which is why the Department of Justice last week asked to hire an additional 100 lawyers next year over what they had this year.

As the Legal Times reports it,

The U.S. Department of Justice's budget request for 2014 seeks to add dozens of attorney positions, boosting efforts to combat cybersecurity, prosecute financial and mortgage fraud and combat international piracy of intellectual property.

For those of you keeping score at home, the federal public defender is laying off people - including at least one Federal Public Defender himself - furloughing others, and otherwise scrambling to deal with the 5% budget cut that went into effect in February. Meanwhile, DOJ is staffing up.

Apparently a change in tide does not affect all boats equally.

Should DOJ worry that they won't find enough harried, underpaid public defenders to be on the other side of the the cases that their fancy new prosecutors will be bringing?

And, with that, to the victories!

1.United States v. Fareri, D.C. Circuit: Appellant pled guilty to mail fraud, was sentenced to 105 months in prison, and ordered to pay restitution. Remand was required for the district court to correct the specific amounts owed to appellant's victims, as the list of payments due to each victim exceeded the amount identified in the court's oral pronouncement and written judgment. Though the district court's total restitution amount was binding, remand was required to reapportion the payments between victims. [Note - Matt Kaiser was trial counsel in this case.]

2. United States v. Grigsby, Sixth Circuit: The district court issued an order allowing the government to medicate appellant, a pretrial detainee diagnosed with paranoid schizophrenia, in an effort to restore appellant's mental competency so that he could be prosecuted on bank robbery charges. Because appellant's liberty interest in avoiding involuntary medication outweighed the government's interest in prosecution, the order was reversed and the case remanded for further proceedings.

3. United States v. Hinds, Eleventh Circuit: Appellant was convicted of conspiring to possess with intent to distribute crack cocaine and sentenced to a lengthy prison term. He was later resentenced to a reduced term of 120 months. The acts giving rise to the conviction occurred before the passage of the Fair Sentencing Act ("FSA"), though appellant was re-sentenced after the Act. The FSA raised the drug quantities required to trigger mandatory minimum sentences for certain crack offenses. Because appellant was re-sentenced after the FSA was enacted, his sentence was vacated and the case remanded for resentencing.

Last week was an active week in the federal appeals courts.

Perhaps most interesting - especially to those who are concerned about the state of our federal public defenders - is the Second Circuit's opinion in United States v. Barton. There, a federal defender tried to get out of a case but the judge wouldn't let him out.

On those facts, it turns out that was reversible error.

As the federal defender budget crisis gets worse, this kind of opinion may be comforting?

As you may have heard, there's been a lot of coverage of the federal defender budget situation in the press in the last week. The federal defender for the Southern District of Ohio laid himself off rather than do the same to his people. NPR had a big story on the federal defender system which is worth a listen.

What's frustrating about a lot of this coverage is that it blames the whole problem on the sequester. While the sequester is, of course, not helping, the Administrative Office of the U.S. Courts announced the budget restructuring on February 14th, before the sequester hit (and, even, before it was clear the sequester was going to hit).

The sequester is bad. And I'm all for getting the word out on that. But it seems that the FPD problem is also the result of something going on that isn't terribly indigent-defense friendly in the AO.

And, with that, to the victories,

1. United States v. Baird, First Circuit: Appellant was convicted of possession of a stolen firearm. At trial, the court refused to give a jury instruction that would have allowed him to assert the defense of "innocent possession" of the stolen weapon. Because appellant was entitled to that instruction, his conviction was vacated and the case remanded for a new trial.

2. United States v. Barton, Second Circuit: An assistant federal public defender made a motion to withdraw from representing a defendant in a criminal case. The court abused its discretion by forcing the attorney to continue the representation because the defendant, after being informed of his right to counsel, refused to recognize the public defender as his attorney, said he didn't want an appointed attorney, and didn't attempt to establish his financial eligibility for appointed counsel.

3. United States v. Benoit, Tenth Circuit: Appellant was convicted of receipt and possession of child pornography. Because these convictions arose out of the same depictions, the convictions violated the double jeopardy clause, requiring remand to vacate one of the convictions and sentences. Additionally, because the court did not explain whether the specific losses suffered by the victim were proximately caused by appellant's action, remand for redetermination of the portion of damages attributable to appellant was required.

4. United States v. Doyle, Sixth Circuit: Appellant pled guilty to failing to register as a sex offender and was sentenced to three years and one month in prison, followed by ten years' supervised release, which was subject to four special conditions. Because the court procedurally erred in failing to explain the reasons for imposing the special conditions, and because the record doesn't otherwise explain the basis for them, the special conditions were vacated and the case remanded for resentencing.

5. United States v. Fisher, Fourth Circuit.pdf: Appellant pled guilty to possession of a firearm by a felon. The officer responsible for the investigation that led to the appellant's arrest and guilty plea later pled guilty to defrauding the justice system. In particular, the officer admitted lying in the affidavit underpinning the warrant for appellant's home and car, where evidence forming the basis of the charge to which appellant pled guilty was found. The officer's affirmative misrepresentation, which informed appellants' decision to plead guilty, rendered appellant's plea involuntary and violated his due process rights. As a result, the district court erred in denying appellant's motion to vacate his plea.

6. United States v. LKAV, Juvenile Male, Ninth Circuit: Tribal authorities of the Tohono O'odham nation charged a juvenile with murder in 2009. In 2011, the United States filed its own charge against the juvenile and moved to commit him to an adult medical facility for psychiatric evaluation. Because the district court erred in committing the juvenile under 18 U.S.C. § 4241(d), rather than § 5037(e), reversal was required.

7. United States v. Logan, Eighth Circuit: Appellant pled guilty to conspiracy to distribute 50 grams or more of crack cocaine and was sentenced to 156 months in prison, which was later reduced to 120 months based on substantial assistance she provided after sentencing. Later, appellant filed a motion to reduce her sentence based on an amendment to the advisory guidelines that lowered the base offense levels for certain crack offenses. The district court erred in finding appellant wasn't eligible for a sentence reduction under her plea agreement. She was. Consequently, the case was reversed and remanded for further proceedings.

Two wins in the Eighth Circuit - nice. Other than that, it's a whole lot of resentencing news.

In news related to last week's short wins post, though, where I lamented that Assistant Federal Public Defenders will be doing the same work with less pay, here's more information about the horrible budget/employment situation in our country's federal defender's offices.

In particular, I received an email calling me out for underdescribing how bad the situation is.

From a source in a leadership position of a federal defender organization, on the way the budget cuts have worked in that office:

[T]he nationwide problem is bigger than some lawyers doing the same work for less pay.

And it should be said that the Congressional sequester is but part of our pain. Last year, we ran our joint for just over $4M (and returned nearly $100K at year's end). We started this year upon preliminary funding of $3.8M, notwithstanding a governance scheme that builds in pay raises for our non-AFDs (who are on the GS scale), despite the increasing costs of our privately obtained (by way of our CDO status) health insurance, etc.

Then, the judiciary elected to cut all FDO budgets by five percent: this cut to our annual budgets was announced on Valentine's Day (meaning that resulting 12-month deficits could only be recovered over the fiscal year's remaining 7+ months). This took us to $3.6M (when, last year, we spent $4M).

Then the sequester hit and cost us another 5.5 percent off our annual budget, leaving us halfway through this year to limp into the future on funding $600K less than we judiciously spent just a year ago.

With a gap like that, furloughs and layoffs are inevitable. These are hard times for the 6th Amendment in federal court. Sure, many folks will be able to afford counsel - but thousands of people a year, under attack by the most powerful government in the history of the planet, will have compromised access to a lawyer.

Sad times.

To the victories . . .

1. United States v. Benjamin, Third Circuit: Appellant was convicted of, among other things, two counts of possession of a firearm by a convicted felon. One charge was based on appellant's use of a gun at a gun range, and the other was based on possession inside his home. Because there was no evidence showing that appellant relinquished constructive possession of the gun, there could only be one conviction. Because this error was plain, affected appellant's substantial rights, and seriously affected the fairness, integrity, or public reputation of judicial proceedings, the case was remanded with instructions to vacate the home possession conviction and to merge both convictions into one.

2. United States v. Culbertson, Fifth Circuit: Appellant pled guilty to possession with intent to distribute methamphetamine and was sentenced to 87 months in prison followed by five years' supervised release. Appellant violated his conditions of supervised release and was sentenced to 30 months in prison, followed by 113 days in a residential reentry program. This sentence was above his advisory guideline range of five to 11 months in prison. Because the court based the sentence on its perception of appellant's rehabilitative needs, the case was remanded for resentencing.

3. United States v. Higgins, Eighth Circuit: Appellant was convicted of distributing crack cocaine, among other drug offenses, and sentenced to 360 months in prison on that count. Because the court erred in applying a career offender enhancement to that sentence under guideline § 4B1.1, the sentence was vacated and the case remanded for resentencing.

4. United States v. Johnson, Eighth Circuit: Appellant's supervised release was revoked and he was sentenced to 21 months in prison. At the hearing, a probation officer read a police report into evidence alleging appellant had been arrested for certain crimes. The government offered no explanation for the arresting officer's unavailability. This lack of an explanation, balanced against the reliability of the report, resulted in a violation of appellant's right to confront adverse witnesses. As a result, appellant's sentence was vacated and the case remanded for resentencing based on the existing record before it, without considering the police report.

There's only one published win in the last week for a criminal defendant in our federal circuit courts. Gotta love a good case involving the Munitions List.

I would suspect that we should look forward to a slower stream of cases from the circuits as the country's budget crisis plunges forward.

Many of my friends are Assistant Federal Public Defenders, and, over the next few weeks these folks - who are already underpaid for a lawyer - will have to take furlough days. I know these folks and what a furlough will mean. Most of them aren't going to work less hard, they're just going to get paid less.

There's a nice article in the Huffington Post about the furloughs in federal defender offices.

There's a great quote in the article by United States District Judge Catherine C. Blake:

"It's important that people who don't have any power and any voice have people to speak for them . . . You never know when you might need the 6th Amendment."

I think Judge Blake is the finest judge on the federal district court bench because of her wisdom, her raw intelligence, and the caliber of her law clerks. It's great to see her speaking out on this important issue.

To the victory:

1. United States v. Wu, First Circuit: Appellants were convicted of violating restrictions on the overseas shipment of weapons-grade technologies. Two of the convictions were for exporting items restricted under the U.S. Munitions List. The district court erred in not submitting to the jury an element of the offense. This violated appellants' Sixth Amendment right to a jury trial. Because the error wasn't harmless, appellants' convictions on these two counts were vacated and the case remanded for resentencing.

It's a good week for violent crime in the federal circuits - a robbery case from the First Circuit and an assault in Indian country winding up in the Ninth Circuit. And both resulted in a defendant-friendly remand. Go federal appeals courts!

Though I suppose the big news from last's week's defense wins in the federal appeals courts is the Third Circuit's United States v. Reynolds. There, the Third Circuit struck down a conviction for failing to register as a sex offender because the Attorney General's rule that applied SORNA (the federal statute that federalizes sex offender registry - because Congress thinks there simply cannot be enough federal criminal statutes) wasn't totally compliant with notice and comment rulemaking, in as much as there wasn't an opportunity for notice and comment on the rule before it was made.

It's a great issue - kudos to the Third Circuit for thinking the APA is the law even when it applies to people accused of crimes.

To the victories!

1. United States v. Almeida, First Circuit: Appellant was indicted and convicted of burglary. The court applied a robbery sentencing guideline, resulting in a sentence about twice what it would have been under the burglary guideline. Note 1 to guideline § 1B1.2 and the guidelines' Statutory Appendix provide that where the guidelines specify more than one offense guideline for an offense and no plea agreement agrees to a more serious offense, the court must pick the most appropriate guideline based only on the conduct in the indictment. Because the court picked a guideline that wasn't based on bank burglary, appellant's sentence was vacated and the case remanded for resentencing.

2. United States v. Alvirez, Ninth Circuit: Appellant was convicted of assault resulting in serious bodily injury on an Indian reservation. Because Indian tribes aren't listed among the groups that may produce self-authenticating documents, the court abused its discretion in admitting an unauthenticated Certificate of Indian Blood as evidence that appellant has recognition as an Indian. Because the error wasn't harmless, appellant's conviction was reversed and the case remanded.

3. United States v. Reynolds, Third Circuit: Appellant was convicted of sexual assault and required to register as a sex offender. Years later, the Sex Offender and Registration Notification Act ("SORNA") was passed, which required sex offenders to comply with certain registration requirements. A rule was passed that made SONRA applicable to pre-SONRA offenders like appellant, but didn't provide a period for notice and comment on the rule. Because the Attorney General didn't have good cause to waive the notice and comment, the lack of good cause prejudiced appellant. As a result, appellant's conviction for failing to register was vacated.

4. United States v. Williams, Sixth Circuit: Appellant pled guilty to possession with intent to distribute oxycodone. Because the district court erred in applying a two-level enhancement for obstructing justice under § 3C1.1, appellant's sentence was vacated and the case remanded for resentencing.

Only one win last week - on a technical issue of what counts as a crime of violence, statutory rape, and sentencing law.

Pity.

To the victory!

1. United States v. Rangel-Castaneda, Fourth Circuit: The district court incorrectly classified appellant's Tennessee statutory rape conviction as a generic "statutory rape" offense and, by extension, a "crime of violence" under the sentencing guidelines enhancement in § 2L1.2(b)(1)(A)(ii). This is because Tennessee's provision is significantly broader than the generic offense: in Tennessee, the age of consent is 18, while the "generic, contemporary meaning" of statutory rape sets it at 16. For these reasons, the case was remanded for resentencing.

It's a good week in the federal circuits for folks accused of a crime.

Instead of the all-too-common diet of sentencing remands, there are some nice wins on our rights against unreasonable searches and seizures and against uncounseled statements to law enforcement. Well done appellate counsel!

And, what week would be complete without an opinion on restitution in child pornography cases.

To the Victories!

1. United States v. Black, Fourth Circuit: Appellant pled guilty to being a felon in possession of a firearm after his motion to suppress the firearm was denied. Because the officers who stopped him lacked reasonable suspicion to believe he was engaged in a crime, the stop violated the Fourth Amendment, and the firearm should have been suppressed as fruit of the unlawful search. For these reasons, the district court's ruling on the motion was reversed and appellant's conviction and sentence were vacated.

2. United States v. Gamble, Sixth Circuit: Appellants were convicted of two unrelated child pornography offenses and ordered to pay over $1 million in restitution to "Vicky," one of the people depicted in the images. Because the courts did not require a showing of proximate cause between Vicky's losses and the appellants' offenses, remand for that analysis was required. Furthermore, on remand, the lower courts must reconsider the extent to which appellants must pay restitution where they share responsibility for Vicky's injuries with hundreds of other child pornography viewers.

3. United States v. Ramirez, First Circuit: Appellant pled guilty to conspiracy to distribute and distribution of crack cocaine. He was sentenced to 13 years in prison. Because the record was unclear as to whether the court applied an enhancement for knowingly or intentionally using a minor person when committing the offenses, remand was required to resolve this question.

4. United States v. Hunter, Seventh Circuit: The district court properly granted appellant's motion to suppress statements he made to police after asking for his attorney. Because appellant unambiguously and unequivocally invoked his right to counsel, the officers should have stopped questioning him. As a result, the statements appellant made after asking for his attorney were properly suppressed.

5. United States v. Bell, D.C. Circuit: Appellant was convicted of conspiring to possess and distribute PCP. He argued that his lawyer was ineffective because the lawyer didn't tell him that he could have received a lower sentence under the "safety valve" provision of the Guidelines. Appellant also said his lawyer was ineffective because the lawyer didn't request a continuance at the sentencing hearing when it became apparent that appellant didn't about the safety valve. Because the record suggested a serious possibility that the lawyer was ineffective and that this ineffectiveness prejudiced appellant, remand was proper to resolve this uncertainty.

6. United States v. Moore, Fourth Circuit: Appellant was convicted of carjacking, using a firearm in the carjacking, and conspiracy. Because the district court erred in denying appellant's motion for a new trial, which was based in part on newly discovered evidence that a picture of a potential suspect in the underlying offenses was mislabeled, his conviction was vacated and the case remanded for a new trial.

Three odd cases were decided last week in the federal circuits.

First, the Eleventh Circuit vacated a set of convictions because the indictment didn't successfully allege that the folks who were convicted had committed a crime.

The Sixth Circuit had a two-fer this week; one case involved sentencing irregularities and the other involved irregularities of a more troubling and frequent kind - cops lying.

To the victories!

1. United States v. Izurieta, Eleventh Circuit: Appellants were convicted of one count of conspiring to unlawfully import goods and six counts of smuggling goods into the United States. Because the indictment did not adequately set forth a violation of criminal law on any of the counts, all of appellants' convictions were vacated. The smuggling counts were based on a regulation, the violation of which resulted in paying a fine, not criminal punishment. The conspiracy count did not adequately put appellants on notice as to what criminal statute they were alleged to have violated, especially given that the vast majority of the indictment focused on acts that were not criminal.

2. United States v. Kurlemann, Sixth Circuit: Eric Duke and Bernard Kurlemann were involved in a scheme to sell homes to straw men who couldn't afford them. Kurlemann was convicted of making false statements to a lending institution, among other offenses. Because the jury instructions for the false statements count included an erroneous legal theory, Kurlemann's conviction was reversed and the case remanded for retrial on this count. At Duke's sentencing for loan fraud and making false statements, the court granted his motion for a downward departure under Guideline § 5K1.1 for substantially assisting in Kurlemann's prosecution, but didn't identify Duke's post-departure Guidelines range. As a result, it was unclear whether or by how much the court varied from that range in imposing sentence. For these reasons, the case was remanded for resentencing.

3. United States v. Shaw, Sixth Circuit: Appellant pled guilty to distributing cocaine after officers discovered large amounts of it in his home during a protective sweep. Police unlawfully entered and remained in the home under false pretenses. First, they lied about having a search warrant - it was actually for a neighbor's home - and second, once inside, they lied again about the address on the warrant. Because the officers had no right to enter the house based on a lie and no right to stay there based on a lie, the interaction violated the Fourth Amendment. As a result, the district court's denial of appellant's motion to suppress the cocaine was reversed, and the case remanded for further proceedings.

It's a scattershot collection of sentencing remands in this week's short wins.

Also, Happy Belated President's Day everyone, or, as OPM says, happy Washington's Birthday:

This holiday is designated as "Washington's Birthday" in section 6103(a) of title 5 of the United States Code, which is the law that specifies holidays for Federal employees. Though other institutions such as state and local governments and private businesses may use other names, it is our policy to always refer to holidays by the names designated in the law.

Used car dealers with their "President's Day Sales" may differ though.

To the victories!

1. United States v. Battle, Tenth Circuit: Appellant was convicted of conspiracy to possess with an intent to distribute 50 grams or more of crack. He was sentenced to 360 months in prison, and was later resentenced to 324 months after he filed a motion to reduce his sentence based on the retroactive amendment of the crack cocaine guidelines. The 324-month sentence was based in part on the court's finding that appellant was responsible for more than 3.4 kilograms of crack. Because the record did not support attributing this amount to appellant, the court reversed and remanded for resentencing.

2. United States v. Epps, D.C. Circuit: Appellant was convicted of various drug offenses under a Rule 11(c)(1)(C) plea agreement. He was sentenced to 188 months in prison followed by five years of supervised release. The court had jurisdiction to hear the appeal notwithstanding appellant's release from prison and the start of his supervised release. The appeal was not moot because appellant's term of supervised release may be impacted by the outcome of the appeal. Finally, appellant was entitled to a reduction of his sentence under the revised guidelines. For these reasons, the case was reversed and remanded.

3. United States v. May, Ninth Circuit: Appellants pled guilty to receipt of stolen mail and mail theft. The court's loss calculation included expenses the U.S. Postal Service ("USPS") incurred to avert future thefts. The court improperly ordered restitution for USPS' expenses because the mail theft of which the defendants were convicted occurred after, and could not have caused, USPS' delivery procedure change. As a result, the portion of the restitution order awarding restitution for USPS' expenses was vacated.

4. United States v. Patrick, Seventh Circuit: Appellant pled guilty to sex trafficking and was sentenced to 360 months in prison, to be served consecutive to a 20-year state court sentence appellant was serving. Because the court failed to discuss appellant's cooperation with authorities, appellant's sentence was vacated and the case remanded for further proceedings.

5. United States v. Capers, et al., Eleventh Circuit: Bishop Capers, Leon Frederick, and Larry Little were convicted of conspiracy to possess with intent to distribute cocaine and crack cocaine. The court ruled that the Fair Sentencing Act, which reduced the guidelines ranges for the offenses at issue, did not apply to Mr. Capers and Mr. Little's sentencing guidelines calculations because their offenses were committed before the Act was passed. This was error. Consequently, Mr. Capers and Mr. Little's sentences were vacated and the case remanded for resentencing.

It's been a big week for resentencings - especially in the Sixth and Seventh Circuits.

The DC Circuit came in with an important decision on the BOP's Inmate Financial Responsibility Program. The Ninth Circuit weighed in on supervised release conditions in a sex case.

Though, really, six opinions from our federal circuits last week and all of them involve a resentencing. It's a sad kind of winning.

To the victories?

1. United States v. Godoy, D.C. Circuit: Appellant pled guilty to mail fraud, was sentenced to 60 months in prison, and ordered to enroll in the Inmate Financial Responsibility Program. Because he could not be ordered to enroll in the program, his sentence was modified to reflect that enrollment was voluntary.

2. United States v. Preston, Ninth Circuit: Appellant was convicted of abusive sexual contact and sentenced to 50 months in prison and lifetime supervised release, subject to several conditions: (1) participating in plethysmograph testing; (2) prohibiting the possession/viewing of "any other material" of a sexual nature; and (3) prohibiting contact with or being "in the company of" children under 18. The court did not make specific factual findings before ordering the testing in condition (1). On remand, if the court again orders testing, factual findings must be made. Because condition (2)'s reference to "any other material" was too broad, remand for clarification on this point was warranted. Finally, remand on condition (3) was appropriate to add a mens rea requirement and for the court to explain its reasons for imposing the condition, given that it implicates significant liberty interests, or, if it cannot, to narrow the condition appropriately.

3. United States v. Deen, Sixth Circuit: Appellant was convicted of distributing crack and sentenced to 66 months in prison and four years of supervised release. After violating supervised release, he was sentenced to two years in prison to "give the Bureau of Prisons another chance to do some in-depth rehabilitation." Because the Sentencing Reform Act prohibits a court from imposing a sentence to enable a person to complete a treatment program or otherwise promote rehabilitation, the court erred in imposing a sentence based on appellant's rehabilitative needs. His sentence was vacated and the case remanded for resentencing.

4. United States v. Love, Seventh Circuit: Appellant was convicted of distributing and conspiring to distribute crack. Because he committed these offenses before the effective date of the Fair Sentencing Act, but was sentenced after, he was entitled to resentencing under the Act's less stringent crack provisions. Resentencing was also proper because the court incorrectly calculated the guidelines sentence. For these reasons, his sentence was vacated and the case remanded for resentencing.

5. United States v. Wren, Seventh Circuit: Appellants were convicted of crack offenses. They both had original Guideline ranges above the statutory floor and received sentences below that floor because of the substantial assistance they provided to the prosecutor. After they were sentenced, the Sentencing Commission made changes to the Guideline ranges for crack that would have permitted a reduction in their sentences. Because the court erred in ruling that appellants were prevented from receiving lower sentences under Guideline § 5G1.1, the case was remanded.

6. United States v. Macias-Farias, Sixth Circuit: Appellant was convicted of drug trafficking and sentenced to 320 months in prison. Because the court failed to make the findings necessary to enhance appellant's sentence for obstruction of justice under Guideline § 3C1.1, remand for resentencing was required.