In April, May and June the Third Circuit vacated convictions in three cases. The first, United States v. Lopez, addresses prosecutorial misconduct (Doyle error); the second, United States v. Vasquez-Algarin, addresses law enforcement misconduct (Fourth Amendment/forced entry); the third, United States v. Dennis, addresses trial court error (failure to give an entrapment instruction) in the larger context of reverse-sting stash house operations. Each opinion touches on policy concerns raised by the legal issues; the majority and Judge Ambro’s concurrence in Dennis are particularly worth reading for anyone litigating stash house cases. The three cases were decided by three non-overlapping panels of judges.
Here is a recap of some recent victories from the Sixth Circuit. Good to see vigilant defense counsel using foresight to prevent undue restrictions resulting from sentencing conditions.
United States v. Arnold. Sixth Circuit: A jury convicted Appellant of being a felon in possession of a firearm. At sentencing, the district court departed upward, at least in part, because of its concern that a longer term of imprisonment was needed to ensure that Appellant received appropriate mental health treatment. Specifically, the district court found that Appellant’s “anger” warranted an upward departure to promote public safety, but also that Appellant so needed a “psychiatric intervention” that the Court felt compelled “to grant the government’s motion to go outside and above the sentencing guidelines” to ensure the Appellant would receive that treatment. The Sixth Circuit found that the district court abused its discretion.
United States v. Kelly. Sixth Circuit: Appellant violated his terms of supervised release by failing to register as a sex offender. As part of its Judgment, the district court imposed that district’s rote conditions of supervised release for sex offenders. But the Appellant’s last sex offense predated the revocation by 26 years. Moreover, the record demonstrated that Appellant had a low likelihood of recidivism (for sex offenses), had no mental disorder, had benefitted from previous therapy, and the age had lessened the risk of re-offending. Under such circumstances, the district court abused its discretion and the sentence was substantively unreasonable. The case further highlights the need for Counsel to be vigilant when Courts seek to impose “standard” conditions of supervised release.
Bonifacio Toribio-Almonte was indicted on two counts: (1) conspiracy to import five kilos or more of cocaine and one or more kilos of heroin into the U.S., and (2) conspiracy to possess and distribute five kilos or more of cocaine and one or more kilos of heroin on board a vessel within U.S. customs waters. On the morning his trial was set to begin, he pled guilty without a plea agreement.
Mr. Toribio-Almonte’s guideline range was 188-235 months in prison. He requested a sentence below the guidelines, or at the very least, his minimum mandatory sentence, which was 120 months. The Government requested a 235 month sentence. To support its request for a sentence at the high end of the guideline range, the Government claimed Mr. Toribio-Almonte was a leader or organizer of the conspiracy. The problem for the Government was that it had no evidence whatsoever to back up its claim.
On December 15th the D.C. Circuit overturned for plain procedural error a severe sentence in another of those child pornography sting operation cases that appear with some frequency in this jurisdiction.
In a split opinion that is somewhat remarkable for its composition (Senior Circuit Judge Edwards and Circuit Judge Henderson comprising the majority with Senior Circuit Judge Sentelle dissenting) the Circuit reversed the conviction of James Brown, a defendant with a seeming penchant for sexual relations with underage females, including his daughter and at least one granddaughter. The Court found that the district court had plainly erred in sentencing Mr. Brown to a 144-month prison term, which was 47 months in excess of a jointly-requested low end of the Guidelines range and 23 months above the high end. In finding procedural error, the court sidestepped the appellant’s alternative claim of substantive unreasonableness. In particular, the panel found that the lower court’s explanation for an above-Guidelines sentence was inadequate under United States v. Akhigbe, 642 F.3d 1078, 1085-86 (D.C. Cir. 2011)).
Writing for the majority, Judge Edwards found that the district court had plainly failed to provide adequate in-court and written explanations for imposing a sentence that neither the prosecution nor the defendant had sought. Describing the Trial Judge’s in-court characterization of Brown’s conduct “spare and unparticularized,” the panel pointed out that the lower court’s explanation for the above-Guidelines sentence to have been a “‘mere recitation of . . . § 3553(a) factor[s] without application to the defendant being sentenced [which] does not demonstrate reasoned decisionmaking or provide an adequate basis for appellate review.’” (slip op. at 12) (quoting Akhigbe, 642 F.3d at 1086). Nor did the trial judge’s “unparticularized references to “actual abuse of children’ and ‘predatory conduct’ provide [any] basis for suggesting why the conduct described was more harmful or egregious than that accounted for in the Guidelines calculation, let alone why that conduct merited a sentence 23 months in excess of the applicable Guidelines range.” (slip op. at 12-13). In a similar vein, the Court found “unenlightening” the trial judge’s comment that “the combination of behaviors to which Brown pled is ‘not conduct we normally get around here,’” for that comment failed to explain why Brow’s behavior “was more egregious or harmful than that accounted for by the applicable Guidelines calculation.” (Id. at 3-14).
Gregory McLeod pleaded guilty to being a felon in possession of a firearm. The Government sought an enhanced penalty under the Armed Career Criminal Act (ACCA), arguing that Mr. McLeod had at least three prior violent felony convictions, all of which were South Carolina second-degree burglaries. If the Government was right, and the District Court believed it was, Mr. McLeod faced a prison term of fifteen years to life. If Mr. McLeod was right, he faced no more than ten years in prison. The Fourth Circuit doesn’t tell us more about the facts of his offense because what we really care about is what happened in South Carolina state court in 1998.
Mr. McLeod had a total of five convictions for second degree burglary. The District Court found that all five convictions were violent felonies. The indictments in “those cases charged McLeod with breaking and entering a commercial building with the intent to commit a crime.” Seems simple enough, right? But sometimes a state burglary isn’t a federal burglary.
There have not been many decisions from the D.C. Circuit in recent months – criminal or otherwise. But a rare reversal in an unusual coram nobis proceeding is worth mentioning as we swing into those grey winter months.
In an opinion remarkable for its turnaround – announced only 45 days after oral argument – the Circuit concluded that Kerry Newman, a permanent resident alien since 1980, had established one viable ground on which to claim that his defense counsel might have rendered ineffective assistance by providing erroneous advice at sentencing about the potential consequences of a guilty plea to a felony offense. United States v. Newman, _ F.3d _, 2015 U.S. App. LEXIS 1988 (D.C. Cir., Oct. 2, 2015).
The United States government thought that Lonnell Glover was a drug dealer. They tapped his phone, but he spoke in code so they couldn’t get any evidence on him that way.
The government knew that Mr. Glover liked to talk in his truck, as so many Americans do. So they decided to get authorization from a judge to put a bug – a little microphone – in his truck.
The bug was authorized by a federal judge in Washington, D.C. The truck, at the time, was at Baltimore Washington International Airport (or, more accurately, Thurgood Marshall Baltimore Washington International Airport).
When you go to a restaurant, you have to pay for the meal – there’s a quid pro quo. But you don’t have to leave a tip (we’re leaving aside situations where you have a large party and they automatically add 18%). A tip you leave because you want to note and appreciate the service you received. Maybe a tip is expected, but a waiter can’t sue you for not leaving one.
So too with bribes, gratutities, and law makers. If a member of Congress makes a deal with you where you’ll give him $10,000 in exchange for voting for your favorite bill, that’s a bribe. But if he votes for your favorite bill and then you send him $10,000 because you’re excited about his vote, that’s a gratuity.
As the Supreme Court has said,
Does marriage fraud happen in the marriage, or at the wedding? As it happens, marriage fraud, at least according to the Eleventh Circuit, is a bit of a misnomer – it’s really better thought of as wedding fraud.
The statute is 8 U.S.C. § 1325(c). It says that it’s a marriage fraud whenever “[a]ny individual who knowingly enters into a marriage for the purpose of evading any provision of the immigration laws.” The case is United States v. Rojas.