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Remanding – Trial Judge’s failure to address claims of sentencing entrapment: United States v. McKeever, _ F.3d _ (D.C. Circuit, No. 13-3096, June 10, 2016)

June 10th was a day in which criminal appellants hit the trifecta in the D.C. Circuit. In the first of three decisions remanding appeals, a unanimous panel of the D.C. Circuit remanded lengthy sentences given to three appellants who raised sentencing entrapment claims arising from a so-called “reverse sting” operation.

In United States v. McKeever the defendants were prosecuted under the Hobbs Act, 18 U.S.C. § 1951, for conspiracy to rob a liquor store and thereby interfere with commerce. Appellants each pleaded guilty and were sentenced. They principally argued on appeal that, inter alia, the District Court had erred in applying the so-called “Gun Bump” enhancement of Guidelines §§ 2B3.1(b)(2)(C) (five-level enhancement warranted if firearm brandished or possessed during robbery), to their sentence, reasoning that the conspiracy offense wasn’t covered by the bump. Although that theory proved unsuccessful (Slip Op. at 9-16), their key back-up claim earned a remand.

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Sentencing – trial court’s erroneous reliance on ambiguous “other crimes” evidence previously rejected under Rule 404(b), F. R. Evid., justifies vacation of lengthy sentence: United States v. Kpodi, _ F.3d _ (D.C. Circuit, No. 14-3037, May 31, 2016)

A unanimous panel of the D.C. Circuit found error and vacated a 151-month sentence imposed over objection by the trial court, which previously had found the same evidence too attenuated to allow its introduction at trial. Finding the trial judge’s decision an abuse of discretion, and the admission harmful, the Court of Appeals vacated the sentence and remanded the case.

In Kpodi the defendant had been accused of narcotics and weapons charges occurring about May 9, 2013, when federal and state agents searched a residence Kpodi shared with a roommate. The district judge had rejected the Government’s effort to present evidence under Rule 404(b), F. R. Evid., of several supposedly related events, most pertinently an April 4th shooting near Kpodi’s home. Although there was no evidence that shell casings found near the scene matched any particular weapon, the Government argued that they were circumstantial evidence of Kpodi’s constructive possession of a firearm found a month later in the search of his house. (slip op. at 2-4). Kpodi successfully argued prior to trial that no one had identified the April 4th shooter. In response to the prosecution’s contention that people had seen him running in the neighborhood after the shots rang out, Kpodi pointed out that the Government’s proffered evidence merely placed him on the street. (Id. at 4-5)

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Ex Post Facto – counsel’s failure to seek a sentence by application of the Guidelines in effect at the time of the offense was plain error: United States v. Head, _ F.3d _ (D.C. Circuit, No. 14-3055, March 25, 2016)

A 2-1 panel of the D.C. Circuit found plain error for trial counsel’s failure to ask the district court to sentence the offender in accordance with the Guidelines in effect at the time of the offense. Because those Guidelines would have been more favorable to the defense, an Ex Post Facto clause violation occurred.

Head is a split opinion that is reminiscent of United States v. Abney, _ F.3d _ (D.C. Circuit, No. 14-3074, February 5, 2016). In Head, another interesting alignment (Circuit Judge Pillard and Senior Circuit Judge Silberman comprising the majority with Senior Circuit Judge Sentelle dissenting) found that defense counsel should have urged the district judge not to rely on post-offense Guidelines, and vacated and remanded the sentence for re-sentencing under the proper Guidelines.

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Correction of judgment and restitution: “There is something very wrong with this picture – so wrong Stevie Wonder could see the flaw from a phone booth in Chicago:United States v. Hughes_ F.3d _ (D.C. Circuit, No. 13-3073, February 23, 2016) (Brown, J., concurring)

A unanimous panel of the D.C. Circuit, expressing its distaste for the Internal Revenue Service’s seizure of a tax refund due a small-fry former employee of Blackhawk, Inc., reversed a trial judge’s failure to correct a clerical error in its judgment and in failing to order the refund be returned to the defendant.

In his characteristically crisp way, Circuit Judge Williams expressed distaste with the “ordeal” (slip op. at 2) the Government had put Shawn Hughes to, after she had served her 30-day sentence and towards the end of supervised release. Hughes and a co-defendant had pled guilty to making false statements to government authorities about the (non)-training given guards employed by the now-defunct Blackhawk, Inc. The district court made both jointly and several responsible for $442,000 in restitution but had expressed a clear intention that the actual restitution amount should be much smaller. If Blackhawk paid a $1 million judgment, the court said she would owe nothing, and if it didn’t she would only pay “at a rate of not less than $50 each month.” (slip op. at 2)

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A 2-1 panel of the D.C. Circuit found ineffective assistance of counsel for failure to seek a continuance of sentencing that was about to occur in the short interval between the Fair Sentencing Act’s (“FSA”) passing Congress and its being signed into law.

In a split opinion featuring an interesting alignment (Circuit Judges Rogers and Griffith comprising the majority with Circuit Judge Brown vigorously dissenting) the Circuit overturned Appellant’s ten year mandatory minimum sentence for possessing 68 grams of crack cocaine. The majority found that Abney satisfied the rigorous standards of Strickland v. Washington, 466 U.S. 668 (1994), to justify setting aside his sentence. Abney’s trial counsel knew that the FSA (Pub. L. No. 111-220, 124 Stat. 2372 (Aug. 3, 2010)) had just cleared Congress and that its provisions would cut Abney’s mandatory minimum in half, from ten years to five years. It was also clear at the time that numerous defense lawyers were seeking continuances of scheduled sentencings until the FSA became law, to take advantage of the Sentencing Reform Act’s (“SRA”) provision that the applicable Sentencing Guidelines are those applicable at the time of sentencing, not the time the offense was committed. “Any competent criminal defense attorney familiar with federal sentencing principles would have understood that courts were reasonably likely to read the FSA’s lower mandatory minimums to apply to defendants sentenced after its enactment.” (slip op. at 2-3).

And yet, even though Abney was incarcerated and posed no danger to the public, and notwithstanding a wealth of contemporaneous evidence – all painstakingly noted by the majority (slip op. at 3 n.1) – that the President intended to sign the measure into law, trial counsel failed to seek a continuance of Abney’s scheduled sentencing, which occurred one day before the FSA became law. The fatal flaw, the majority found, was that counsel mistakenly believed legislation was necessary for the FSA to apply retroactively, and didn’t understand that under the SRA, Abney stood to benefit greatly by being sentenced just a few days later, because the FSA’s more generous provisions would govern his sentencing. (slip op. at 5-6). If any further proof of prejudice to Abney was necessary, it was apparent in the district judge’s comment at sentencing that if it had any discretion, it would have sentenced Abney to a term somewhere between the about-to-become new and the about-to-expire mandatory minima. (slip op. at 6).

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United States v. Soto-Rivera

In this case, the First Circuit reviewed a sentencing court’s determination that Mr. Soto-Rivera qualified as a Career Offender. A defendant who is over 18 at the time he commits a “felony that is either a crime of violence or a controlled substance offense,” and who “has at least two prior felony convictions of either a crime of violence or a controlled substance offense,” is a Career Offender. U.S.S.G. § 4B1.1(a).

Mr. Soto-Rivera pled guilty to being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).  At sentencing, the court announced Mr. Soto-Rivera had two previous convictions for “controlled substance offenses.”  The judge then stated, in “conclusory fashion,” that Mr. Soto-Rivera’s latest conviction for felon in possession of a firearm is “considered a crime of violence.”  As a result, the sentencing court found Mr. Soto-Rivera was a Career Offender.  Incredibly, Mr. Soto-Rivera failed to object to the Career Offender classification.

Even more incredible, however, was that on appeal, the Government never recognized Mr. Soto-Rivera’s failure to object during sentencing.  The First Circuit noted that normally, Mr. Soto-Rivera’s failure to timely object at sentencing to the Career Offender designation would subject him to plain error review on appeal.  But the Government never argued for plain error review.  In fact, the Government stated at oral argument the issue should be reviewed de novo.  Thus, the First Circuit held: “in accordance with our precedent and the government’s own request, we will review the issue as if it had been properly preserved.”

Mike Brownlee is an appellate attorney in Orlando, Florida with the firm of Fisher Rushmer, P.A.  His practice is dedicated to federal and state civil and criminal appeals.  

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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.

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United States v. Pough, No. 15-1762 (3d Cir. Jan. 22, 2016) (unpublished)

This non-precedential Third Circuit decision reminds district courts that confessing that you were coerced into confessing something is not the same as confessing that you did what you confessed to doing.  Got that?  The facts may help.  Pough (who was already on federal supervised release) confessed to being a getaway driver in a murder-for-hire.  In a state court prosecution he moved to suppress the confession.  At the suppression hearing he testified about the contents of the confession; loosely, “yes, I confessed to being the getaway driver.”  The state court suppressed the confession as coerced and the state withdrew the charges.

Not one to let these things go, however, the federal government tried to revoke Pough’s supervised release.  The district court interpreted Pough’s testimony at the suppression hearing as an admission that he committed the conduct to which he had confessed, and found a violation.  The court took pains to note that it had “rel[ied] solely on” Pough’s testimony in support of suppression.  It probably did so in the hope of avoiding the thorny question of whether a coerced confession is admissible in a federal revocation proceeding – but in the process it earned a reversal.  Reviewing the transcript, the circuit held the district court’s interpretation clearly erroneous, noting the difference between admitting to having confessed to conduct and actually confessing to the conduct.

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Prosecutors often accuse defense attorneys, and our clients, of using unduly narrow interpretations of the law to justify conduct that hasn’t expressly been ruled illegal.  Who among us hasn’t heard the government invoke some variation of “the absence of an explicit prohibition doesn’t bar a prosecution”?  In other words, says the government, “it’s not okay just because no one told you it isn’t.”

The Third Circuit turned that argument around on the government recently, in United States v. Moreno, ___ F.3d ___, 2016 WL 53796 (3d Cir. Jan. 5, 2016).  A prosecutor in the Western District of Pennsylvania had a bright new idea:  use the defendant’s sentencing allocution as an opportunity to cross-examine him about the offense conduct – an opportunity that the prosecutor hadn’t gotten at trial, when the defendant chose not to testify.  The innovative prosecutor succeeded in eliciting incriminating admissions, upon which the sentencing judge promptly and expressly relied when imposing sentence.  Although the defendant had appropriately cabined his allocution to mitigation and remorse, defense counsel did not object to the cross-examination or the judge’s reliance upon it.

On appeal, the government sought refuge in the fact that neither a rule nor binding precedent explicitly says “no, prosecutors, you cannot cross-examine a defendant at allocution.”  The government relied on this “but no one said I couldn’t” analysis to argue both that no error had occurred, and that any error was not “plain” (as required for reversal, with no objection below). Continue reading →

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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.

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