Federal Judiciary

CIs

Posted on November 19, 2009
Interesting story today about police recruiting CIs. Girl was 20 years old, no drug ties, got picked up for not paying traffic tickets and driving while license suspended. Police said she could avoid a night in jail by becoming a drug CI. Interesting discussion of CIs, recruitment, the risks they take, etc...

Intended Loss Amount

Posted on November 18, 2009
Unpublished opinion in United States v. Newson, No. 08?6080 (6th Cir. Nov. 16, 2009). Panel of Judges Moore, Cook, and Ludington (E.D. Mich.). Defendant pleaded guilty to document fraud (18 U.S.C. § 1028(a)(7)). Sentence of 30 months.Because of lack of factual record regarding the defendant?s intent, the court vacated the sentence and remanded...

Entrapment and Pre-Trial Delay

Posted on November 13, 2009
First, I apologize for my recent lack of posting. It has been a little hectic. I also apologize because this post will be quite brief?again, just a tad hectic.This week, we have United States v. Schaffer, No. 09?3053 (6th Cir. Nov. 12, 2009). Panel of Chief Judge Batchelder, and Judges Daughtrey and Van Tatenhove (E...

Child porn and probable cause

Posted on October 08, 2009
The Sixth Circuit today issued an opinion in United States v. Frechette that has already caused Douglas Berman over at Sentencing Law and Policy to ask "Is concern about child porn distorting normal criminal procedure rules?"The facts are essentially that the defendant, a registered sex offender, paid for a one month subscription to a website that advertised the availability of child porn...

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Resources Available at fd.org

Posted on October 07, 2009
This post breaks no new ground, but I just wanted to remind everyone, especially the panel attorneys out there, to turn to the Sentencing Resource page at fd.org for a variety of excellent materials. I turn to the papers there on a regular basis and dug in once again this past weekend...

S. Ct. Updates

Posted on October 02, 2009
This is going to be brief b/c it's been quite a week here, but interesting things have been brewing.Supreme Court:* 924(c)---United States v. O-Brien, No. 08--1569.Question Presented:Sec. 924(c)(1) provides for escalating mandatory minimum sentences depending on the manner in which the basic offense is carried out...

Speedy Trial Win

Posted on September 08, 2009
United States v. Tinklenberg, Nos. 06?2646 and 08?1765 (6th Cir. 2009). Panel of Judges Keith, Clay, and Gibbons. In an opinion that addresses issues of first impression for the court, the panel dismissed the defendant?s case with prejudice. Points:* It is the date the defendant appears and not the date of the defendant?s not-guilty plea that starts the speedy-trial clock...

More Is Brewing on the Crime-of-Violence Front

Posted on September 02, 2009
Very interesting opinion just released?United States v. Wynn, No. 07?4307 (6th Cir. Sept. 2, 2009). Panel of Judges Moore, Gibbons, and Friedman (of the Federal Circuit). Issue: Is a conviction under Ohio?s Section 2907.03 for "sexual battery" a crime of violence?Points:* Court could not tell which subsection of the statute was the subsection under which the defendant had been previously convicted...

New Blog on Snitches

Posted on August 31, 2009
This month, Alexandra Natapoff, a professor at Loyola Law School in L.A., launched a blog on snitching and the criminal justice system. http://www.snitching.org/Offers some interesting notes on snitches and snitching and legal news of interest.

New Limited Context Test for Lasciviousness

Posted on August 28, 2009
The Sixth Circuit issued three published criminal opinions this week, plus one quasi-criminal/quasi-civil case. However, other than the facts in a couple of them, only one of them, in my opinion, was particularly groundbreaking. The Court's opinion in U...

Guns and Intent and Other Things---2 Cases

Posted on August 21, 2009
I don't have the best cases to blog, so I thought I'd at least post a cheerful picture!United States v. Davis, No. 08?1349 (6th Cir. Aug. 20, 2009)?panel of Judges Cole, Clay, and Cleland (E.D. Mich.). Defendant charged with being a felon in possession of a firearm...

Looking For the Substantively Reasonable Number

Posted on July 30, 2009
In United States v. Harris, 07-4175 (6th Cir. July 27, 2009), Judges Gibbons, McKeague, and Shadur, vacated Harris?s sentence and remanded for resentencing. Harris had pled guilty to two counts of possessing child pornography, one count of receiving and distributing child pornography, and one count of knowingly possessing a computer with child pornography on it...

Computer Searches, The Fourth Amendment, and Sarah Palin

Posted on July 17, 2009
While I know this is not directly related to Sixth Circuit actions in cases, I thought it might be of interest to criminal defense practitioners in addressing searches of computers.I am not sure if this story has made national news, but it is turning into an interesting case down here in Tennessee...

Plea Agreements and Mandatory Minimums

Posted on July 13, 2009
The panel of Chief Judge Boggs and Judges Moore, and Sutton issued an opinion in United States v. Jones, No. 08?1352 (6th Cir. July 7, 2009), considering mandatory minimums and construing plea agreements. The panel made clear a few interesting points, among them:* A plea agreement will always be construed against the government if there is any ambiguity...

Published Clarification on Sec. 3582(c)(2)

Posted on July 09, 2009
On June 30, 2009, the panel of Judges Moore, Gilman, and Phillips (E.D. Tenn.) decided United States v. Johnson and Moss, Nos. 08?3925, 08?3926 (6th Cir. June 30, 2009). The published opinion considers the § 3582(c)(2) motions of two defendants who were indicted for crack and powder cocaine offenses, but who were ultimately sentenced based only on the powder...

Defense Attorneys, As Well As Judges and Prosecutors, Must Get Their Heads In The Post-Booker Process

Posted on June 15, 2009
In United States v. Blue, 557 F.3d 682 (6th Cir. 2009), when a proffered plea agreement required her to plead guilty to additional conduct that she denied committing in order for the government to file a §5K1.1 motion for assistance she had provided, Blue decided to accept an offer that did not require her to admit the additional conduct, but which did not include the filing of the §5K1...

Three Quick Notes on Cases---Rule 35(b), Fleeing and Eluding, and Explanations of Sentences

Posted on June 11, 2009
United States v. Grant, No. 07?3831, 2009 U.S. App. LEXIS 12330 (6th Cir. June 9, 2009) (panel of Judges Gibbons, Keith, and Merritt):* "What factors a district court may consider when ruling on a Rule 35(b) motion is an issue of first impression in this circuit, though we have stated in an unpublished opinion that ?[i]n evaluating a Rule 35(b) motion for reduction, a district court can consider a broad array of factors...

Michigan R and O NOT a C of V

Posted on June 05, 2009
Hooray! Published opinion that Michigan Resisting and Obstructing a Police Officer is not a crime of violence! In United States v. Mosley, No. 08?1783 (6th Cir. June 5, 2009), panel of Chief Judge Boggs and Judges Moore and Sutton considered Michigan R and O under M...

Staving Off Attack?Child-Porn Sentencing Victory

Posted on May 26, 2009
In United States v. Cole, No. 07?4506 (6th Cir. May 22, 2009) (unpublished), the panel of Judges Kennedy, Norris, and Cole affirmed the judgment of the district court after the government appealed the defendant?s sentence. The defendant had pleaded guilty to transporting and possessing child pornography...

Ghosts of Sentences Past---Procedural Reasonableness

Posted on May 15, 2009
Yesterday in United States v. Barahona-Montenegro, No. 08?1345 (6th Cir. May 14, 2009), the panel of Judges Moore, McKeague, and Forester (E.D. Ky.) vacated a sentence as procedurally unreasonable and remanded the case for resentencing. At sentencing, the defense had objected to the criminal-history category in the PSIR...

Void for Vagueness ruling withdrawn

Posted on May 01, 2009
The Sixth Circuit issued an opinion today in U.S. v. Davis, Case No. 07-1964, ruling that officers had reasonable suspicion to believe that Mr. Davis's vision was obstructed by a stuffed Tweety Bird hanging from the mirror. This would not be that exceptional if it wasn't for the fact that this opinion is in direct conflict with a prior opinion by the Court from last December ruling that the statute was void for vagueness...

Good News Re. Crack--Powder Disparity!

Posted on April 30, 2009
Yesterday, DOJ came out in support of eliminating the disparity between crack and powder cocaine sentences. Lanny Breuer, Assistant Attorney General, spoke before the Senate Subcommittee on Crime and Drugs. Here's his written testimony:http://judiciary...

When Are We Burros? IAC Claims and Petitions for Cert...

Posted on April 30, 2009
In United States v. Nichols, No. 05?6452 (6th Cir. Apr. 29, 2009), the Circuit en banc considered whether it is ineffective assistance of counsel to fail to preserve a "future change in the law" argument, one hoping that the Supreme Court will strike down existing law while a defendant?s case is still pending on direct appeal...

Sentencing---Remand for Drug-Quantity Error

Posted on April 20, 2009
In United States v. White, No. 07?2404 (6th Cir. Apr. 16, 2009), the panel of Judges Kennedy, Martin, and Cole affirmed the defendant?s conviction, but remanded for resentencing. A jury found the defendant guilty of several cocaine and firearm offenses and the district court imposed a life sentence...

Every Man a King (or at least a Commentator)

Posted on April 08, 2009
I know that many of you have been itching to comment on the posts at this site, but have been frustrated by the lack of access. Well, remain silent no more! We have worked out our issues with the "comment" feature of the site and anyone should now be able to post comments to the articles on the blog...

Trajectory of Change? Power to Vary from All Guidelines Based on Policy Reasons?

Posted on April 08, 2009
In a very short, published opinion, the panel of Judges Keith, Merritt, and Gibbons remanded a crack case for resentencing. United States v. Vandewege, No. 07?2250 (6th Cir. Apr. 8, 2009). The gist of the case is that the sentencing court did not err in attributing 12...

Getting Funky?Gov Moves Ct to Dismiss Appeal

Posted on April 03, 2009
United States v. Funk, No. 05?3708 (6th Cir. Mar. 27, 2009).On March 27, 2009, the Circuit granted the government?s unopposed motion to dismiss the appeal with prejudice. The panel opinion that was going to be considered en banc remains vacated.What this move means for us...

"A Walkaway Escape Is Not Unambiguously a Crime of Violence"

Posted on March 31, 2009
In United States v. Ford, No. 08?5091 (6th Cir. Mar. 18, 2009), the panel of Judges Merritt, Cole, and Sutton found that a walkaway escape is not a crime of violence. Use of force is not an element of Kentucky?s second-degree escape offense. Analysis therefore proceeded under the "otherwise clause" of 4B1...

St. Patty?s Day Treat?924(c)s Not Always Consecutive in 2nd Cir.

Posted on March 17, 2009
(Pic in celebration of the Emerald Isle.) Well, following up on my post of March 12, the Second Circuit (Judges Pooler, Hall, and Trager, of the Eastern District of New York) has held that a mandatory minimum sentence under 18 U.S.C. § 924(c)(1)(A) is inapplicable when a defendant is subject to a longer mandatory minimum sentence for a drug-trafficking offense that is part of the same criminal transaction as the firearm offense...

Reckless Endangerment Not a Crime of Violence, maybe

Posted on March 16, 2009
Today, a panel of the Sixth ruled in U.S. v. Baker, that reckless endangerment under Tennessee law does not qualify as a crime of violence for career offender and ACCA purposes. The Sixth found that since reckless endangerment by its definition penalizes reckless, rather than intentional, conduct it does not qualify as a crime of violence after Begay...

So Hot-Off-the-Press that Further Details Will Have to Follow?924(c)s Not Always Consecutive?!

Posted on March 12, 2009
There?s some inauspicious Sixth Circuit case law out there like United States v. Jolivette, 257 F.3d 581, 586?87 (6th Cir. 2001), but good things may be happening. Second Circuit just found that the mandatory minimum under 924(c)(1)(A) is inapplicable when the defendant is subject to a higher mandatory minimum sentence for a drug-trafficking offense when that latter offense is part of the same criminal transaction...

Good News from the Categorical-Approach Front

Posted on March 12, 2009
Nice result in United States v. Medina-Almaguer, No. 07?4254 (6th Cir. Mar. 12, 2009) (panel of Judges Keith, Sutton, and Griffin). Defendant sentenced to 27 months for illegal reentry after deportation. Got the 16-level bump for prior drug-trafficking offense...

A Brave New World?Sentencing Review

Posted on March 12, 2009
The panel of Judges Martin, Kethledge, and Carr (Chief District Judge, N.D. Ohio) clarified the nature of sentencing review in United States v. Blue, No. 07?5296 (6th Cir. Mar. 9, 2009). The case is somewhat unremarkable in terms of the facts and issue...

Child Exploitation?Refining Definitions

Posted on March 05, 2009

Trial Issues and Sentencing Win

Posted on March 03, 2009

Sentence Vacated in Child-Porn Case?Helpful Ruling Re. Section 3B1.2 for Mitigating Role

Posted on February 26, 2009
Opinion in U.S. v. Groenendal, No. 07?2430 (6th Cir. Feb. 26, 2009) (panel of Judges Gibbons, McKeague, and Shadur, who is a district judge in Northern Illinois), helpful on issue of application of Section 3B1.2?Mitigating Role?in child-porn cases. Basically, the defendant uploaded three pictures in the space of five minutes to join a porn/child-porn chat group on the Internet...

Judge Breen of W.D. Tenn Rules Reckless Endangerment not Crime of Violence

Posted on February 23, 2009
Today Judge Breen of the Western District of Tennessee ruled that felony reckless endangerment under Tennessee law is not a crime of violence in United States v. Jessie Rogers, Case No. 08-10036. Just a heads up. I'll try to link to the written order but am not sure if pacer will let everybody get there.

The Emperor's New Clothes

Posted on February 13, 2009
In the development of the Supreme Court?s post-Booker caselaw, culminating in Kimbrough, the Court has challenged the defense bar to put the Guidelines to the test. The Sentencing Resource Counsel of the Federal and Community Public Defenders have taken up the challenge in a series of papers...

Sixth Circuit Protects us from Guys with Jobs

Posted on February 12, 2009
Today's opinion in United States v. Kontrol, illustrates how the current federal supervised release system fails to truly achieve the purpose for which it was created. Instead of protecting the public from the dangerous actions of Mr. Kontrol, the district court violated a man's supervised release for not telling his probation officer of new employment, then sentences him to a 15 month term of imprisonment...

Rita 101

Posted on February 06, 2009
Rita 101?a district court may not presume that a sentence within the Guideline range is reasonable, said the Supreme Court once again in Nelson v. United States, No. 08-5657 (January 26, 2009)In Nelson, the petitioner was convicted of various drug offenses...

ACCA and Career-Offender Provisions?6th Cir. Gets Inconsistent

Posted on February 05, 2009
In U.S. v. Hawkins, No. 08?5138 (6th Cir. Feb. 4, 2009), Judges Kennedy, Cole, and Gilman issued a five-page opinion finding that possession of a sawed-off shotgun is a crime of violence under Guideline 4B1.2 and can be used to make a defendant a career offender for sentencing purposes...

New Study to Blast Forensic Lab Standards

Posted on February 05, 2009
The New York Times is reporting today the imminent release of a study conducted by the National Academy of Sciences, at the request of Congress, reviewing the methodology employed by many crime labs across the country. The article states that "the National Academy wrote that the field suffered from a reliance on outmoded and untested theories by analysts who often have no background in science, statistics, or other empirical disciplines...

Unpublished Case that is Helpful in Begay analysis

Posted on February 03, 2009
Yesterday, the Sixth Circuit issued an unpublished opinion in U.S. v. Johnson, No. 06-6445, that will be of interest to attorneys looking to challenge prior offenses with a negligent or reckless mens rea as predicate offenses for the career offender enhancement, especially those in Tennessee...

Spears Applied in Sixth Circuit

Posted on February 02, 2009
Quick note on Sixth Circuit?s recent application of Spears. In United States v. Johnson, No. 07?2447 (6th Cir. Jan. 26, 2009), court held that it would remand a crack case because the district court did not have the benefit of Spears when it imposed sentence...

Quick Note on Another Crackerjack Dissent by Judge Merritt

Posted on January 30, 2009
In United States v. Young, Nos. 07?5600, 07?5608 (6th Cir. Jan. 30, 2009), Judge Merritt considered two sentences for marijuana offenses and had to concur in part and dissent in part in regard to the final outcome of the appeal. The defendants had grown marijuana and distributed it off and on for a period of some years...

Good Child-Porn Opinion

Posted on January 29, 2009
It?s out-of-circuit and a district court opinion, but United States v. Grober, No. 06?CR?880, 2008 U.S. Dist. LEXIS 103392 (D.N.J. Dec. 22, 2008) (slated for publication), is worth a read if you?ve got a child-pornography case. Guideline 2G2.2 put defendant at level 38; he was in criminal history category I...

Spears v. U.S.---Getting the Kimbrough Point Across

Posted on January 22, 2009
Spears v. United States, No. 08?5721 (Jan. 21, 2009).Per Curiam reversal of the Eighth Circuit on Kimbrough grounds. District Court had used a 20:1 crack-to-powder ratio (pre-amendments) to sentence a "mine-run" offender. Eighth Circuit said that the district courts may not categorically reject the guideline ratio...

Constructive Possession---Gun Under Driver's Seat Insufficient

Posted on January 20, 2009
United States v. Bailey, No. 06?5576 (6th Cir. Jan . 20, 2009). Opinion by Judge Moore.Granted petition for rehearing and amended portions of panel opinion. Reversed the defendant?s convictions under Sections 922(g)(1) and 924(c)(1)(A)(i). Affirmed conviction under Section 841(a)(1)...

Failure-To-Report is no Violent Felony

Posted on January 13, 2009
Today the U.S. Supreme Court concluded that "failure to present oneself for detention on a specified occasion" is not a violent felony and therefore cannot serve as a predicate offense under the Armed Career Criminal Act. Chambers v. United States, No...

Void for Vagueness Doctrine

Posted on December 19, 2008
Today, in U.S. v. Davis, the Sixth Circuit overturned a Michigan Statute prohibiting dangling objects from a rearview mirror that "obstruct the vision of the driver of the vehicle." A panel, with Judge Martin writing the opinion and citing Kolendar v...

Boggs: Not ineffective to investigate childhood abuse because the jury would've hung 'em anyways

Posted on December 18, 2008
I do not claim to be an expert in habeas law (although Sumnter's presentation this fall in Nashville definitely taught me a lot more than I knew before), but the decision today in ua href="http://ca6pub1.circ6.dcn/opinions.pdf/08a0450p-06.pdf"West v. Bell/a/u seems to fly in the face of logic...

The Right to Allocution

Posted on December 16, 2008
In United States v. Haygood, Case No. 07-1771, decided December 15, 2008, the Sixth Circuit affirmed a district court's denial of a defendant's Motion to Withdraw Guilty Plea, but found that the district court had violated the defendant's right to allocution at sentencing...

Early Christmas Present in South Florida?Great Opinion Finding SORNA Unconstitutional

Posted on December 10, 2008
While this case is an out-of-circuit, district court case, the opinion is so good I wanted to note it here for those dealing with SORNA issues. The case is United States v. Edward Myers, No. 08?60064?CR?Zloch (S.D. Fla. Dec. 9, 2008). Judge William Zloch?s Final Order of Dismissal is 82 pages of thorough Commerce Clause analysis...

Application of Career Offender Guideline Senseless and Adds Nothing to Goals of Deterrence and Rehabilitation

Posted on December 09, 2008
This sentiment, however, was not shared by the majority of the panel.In United States v. Smith, No. 07?5377 (6th Cir. Dec. 2, 2008), the panel of Chief Judge Boggs and Circuit Judges Merritt (pictured) and Griffin considered two issues: 1) denial of a motion to suppress evidence, and 2) reasonableness of a sentence based on application of the career-offender guideline...

Violation of 18 U.S.C. § 3553(c) constitutes plain error

Posted on December 02, 2008
In United States v. Blackie, Case No. 07-2002, a panel majority in the Sixth Circuit held a district court?s failure to comply with 18 U.S.C. § 3553(c)(2) constitutes plain error. (Section 3553(c)(2) requires district courts to give specific reasons for imposing a sentence that falls outside the Guidelines range)...

The Fifth and Sixth Amendments Live to Fight Another Day

Posted on December 02, 2008
In Thompkins v. Berghuis, Case No. 06-2435, the Sixth Circuit granted habeas relief due to violations of defendant Thompkins? rights under the Fifth and Sixth Amendments. At the state trial level, Thompkins moved to suppress statements he made during his post-arrest interrogation...

Flexibility of Marijuana Equivalency Table

Posted on December 02, 2008
In United States v. Brown, Case No. 07-5465, the Sixth Circuit amended its prior opinion after the government moved for rehearing. Defendant Brown had pled guilty to possessing both crack and powder cocaine. In the original opinion, the panel remanded Brown for resentencing to allow the district court to resentence Brown with the benefit of the November 1, 2007 Amendments to the Sentencing Guidelines regarding crack cocaine calculations...

Effective assistance of counsel? Really?

Posted on December 02, 2008
In Hawkins v. Coyle, Case Nos. 05-4032/4049, the Sixth Circuit held petitioner Hawkins, who was sentenced to death, was not prejudiced by his trial counsel?s failure to conduct any mitigation investigation on Hawkins? behalf. Hawkins had been convicted of committing four counts of aggravated murder, each of which carried two death penalty specifications, and two counts of aggravated robbery with a firearm...

The Good and the Bad of 404(b)

Posted on November 13, 2008
Today in United States v. Davis, the Sixth Circuit reversed a district court's admission of 404(b) evidence offered by the government. Kevin Davis was charged with possession of more than 50 grams of crack cocaine with the intent to distribute and conspiracy to distribute crack cocaine...

Search Warrant Requirement on Life-Support

Posted on October 30, 2008
The Sixth Circuit recently took another step on its road to rendering the search warrant requirement of the Fourth Amendment meaningless. See, e.g., United States v. Allen, 211 F.3d 970 (6th Cir. 2000) (en banc) (upholding search warrant based on allegations of CI having seen unstated quantity of cocaine in residence without any evidence that drugs would be present when warrant executed), and United States v...

"Impermissible Factors" Follow-up

Posted on October 02, 2008
As a follow-up to my recent blogpost about U.S. v. Davis, I did some research into what the Sixth Circuit had found to be "impermissible factors" outside of Davis. As a result, the list now includes:? "defendant's behavior at trial" and prior arrests for which there were no known dispositions...

Third Time Less Than Charming

Posted on August 19, 2008
In United States v. (William) Davis, No. 05-3784 (6th Cir. 2008) (Sutton, J., Boggs, C.J., & Keith, J.) , the Sixth Circuit reversed, for the second time (see 458 F.3d 491), a sentence of 1-day imprisonment and 3 years of supervised release for bank fraud...

Another Day, Another Ruling on Preserving Issues for Appeal

Posted on August 19, 2008
For the second day in a row, the Sixth Circuit contends with whether a defendant properly preserved his appellate rights. In United States v. Matromatteo, the Sixth Circuit was confronted with a situation where a defendant approached the district court and stated that he was pleading guilty, but preserving his right to appeal the denial of his Motion to Suppress and Motion for a Franks Hearing...

Preserving Motions to Compel

Posted on August 18, 2008
Today in United States v. Alexander the Sixth Circuit affirmed a district court's denial of a motion to suppress in a cocaine trafficking case. The facts are straightforward. An inspection of a mail package revealed cocaine. After getting a search warrant, the officers conducted a delivery to the address on the package, and then subsequently entered the house...

U.S. V. Olsen

Posted on August 14, 2008
In an interesting decision today, the Sixth Circuit reversed a sentence where the Guideline range was predicated upon the 1-to-100 ratio of marijuana equivalency for live, growing marijuana plants. The defendant in this case pled guilty to possession with intent to distribute marijuana being grown by her husband in their basement...

Alice Batchelder: Gall and Kimbrough didn't happen, Different ways to abuse your discretion announced

Posted on July 22, 2008
Sorry for the lack of posts but it has been hectic lately. Regardless, a new decision by the Sixths today prompted me to need to post again. On remand from the Supreme Court, a panel of the Sixth Circuit vacated and remanded a district court's below-guidelines sentence...

White En Banc today

Posted on June 04, 2008
United States v. White, dealing with the propriety of the use of acquitted conduct at sentencing is being argued en banc this afternoon. White was the two page opinion last October that stated that two of the three members of the panel had voted to reverse the sentence before United States v...

OUT WITH A WHIMPER ... NOT WITH A BANG

Posted on June 02, 2008
The ruling in the panel decision in United States v. Vonner seemed pretty straight-forward by post-Booker standards ? post-Booker, a district court needs to explain its ruling sufficiently that the appellate court can perform its reasonableness review, and must address any mitigation urged by the defense in favor of a downward variance...

Becoming Emboldened

Posted on May 22, 2008
Busy day in that the Sixth published four criminal cases: two direct appeals and two habeas cases.The first of the direct appeals was United States v. Bullock, Case No. 07-5632. In Bullock, the defendant "made threatening telephone calls to the offices of several public officials, including United States Congressman Harold 'Hal' Rogers, Pulaski County Circuit Court Judge David Trapp, and Pulaski County Circuit Court Clerk George Flynn," stating that he "was going to 'get rid of' these officials...

Good Decision on Bad Traffic Stop

Posted on May 02, 2008
Today at the Sixth Circuit, a panel consisting of Daughtrey, Gilman, and District Court Judge for the E.D. Mich., Edmunds, reversed the Eastern District of Tennessee's denial of a motion to suppress and vacated a defendant's sentence on a firearms offense...

Last week at the 6th, all about the 5th, and a great quote for acquitted conduct

Posted on April 15, 2008
Amendment that is. Last week, the Sixth Circuit published two cases involving whether or not a potential defense witness's invocation of his Fifth Amendment rights prejudiced the defendant's right to present his case at trial. In both cases, the Sixth found that no prejudice occurred...

Hi

Posted on April 15, 2008
My name is Richard Strong, the rws in the Memphis Federal Defender's office. At a CJA conference our office a few months back, I talked with Sumter Camp about helping out on this blog, and I thought it would be a lot of fun. So of course I forgot completely about it for a couple of months until Sumter helped kick start the process of getting me on board with the blog...

Unbuckled seatbelts and prior gun case do not justify "officer safety" patdown

Posted on November 09, 2007
Drugs found in "officer safety" pat-down were properly suppressed. No reason to believe that driver and passenger (defendant Wilson) were armed or dangerous, and therefore no reason to pat down defendant Wilson, when they are pulled over for seatbelt violations, even though the driver was rambling to police and admitted that he previously served federal time on a gun charge...

Now is the Time to Challenge Acquitted Conduct

Posted on October 05, 2007
Today in US v. White, No. 05-6596, a Sixth Circuit panel (Merritt, Daughtrey and Griffin) reluctantly upheld a sentence which included a 14 year enhancement based on conduct for which the jury had acquitted the defendant. Despite upholding the sentence, all three judges expressly agreed that such use of acquitted conduct is an issue that needs to be considered via en banc review...

Possession of Sawed-off Shotgun Not A Violent Felony

Posted on August 18, 2007
In United States v. Amos, the Sixth Circuit became the first circuit court to rule that a conviction for the possession of a sawed-off shotgun does not constitute a violent felony under the Armed Career Criminal Act. Six circuits had previously ruled to the contrary, on the idea that, since a sawed-off shotgun generally lacks any legitimate purpose, its possession must present a serious potential risk of injury...

Rita Fallout

Posted on August 08, 2007
In U.S. v. McGee, No. 06-1554 (6th Cir. 7/11/07) Judge McKeague writes, "Finally, Appellant argues that the presumption of reasonableness applicable to a sentence within the Guidelines range 'is not necessarily the appropriate way to review sentences,' and he asks us 'to reconsider its standard of review and to better define what a criminal defendant must do to rebut the presumption of reasonableness...

No More Tolling

Posted on June 21, 2007
In a unanimous, en banc decision issued today, the Sixth Circuit held that district courts may not order tolling of a term of supervised release. See United States v. Ossa-Gallegos, Case No. 05-5824. This issue frequently arose in cases involving non-citizen defendants expected to be deported after completing their terms of imprisonment...

Lip Service to the Sixth Amendment

Posted on May 09, 2007
This morning the state of Tennessee killed Philip Workman for the shooting death of police lieutenant Ronald Oliver. It did so despite serious questions about whether or not it was Mr. Workman?s gun that fired the fatal shot, or was a round of friendly fire by another police officer...

Post-Sentencing Assault = +15 Years

Posted on April 12, 2007
Reginald Ragland was sentenced in his possession of over 5 grams of crack cocaine case to 300 months as a career offender. His record included two separate aggravated assaults, two separate kidnappings, and an attempted rape. His Guidelines sentencing range was 265 - 327 months...

www.outsidetherecord

Posted on April 03, 2007
In United States v. Husein, 478 F.3d 318 (6th Cir. 3/2/07), the government attempted to supplement the record with facts it cited as coming from "westlaw.com," but providing no other citation. The Court of Appeals held that a party may not by-pass the fact-finding process of the lower court and introduce new facts in its brief on appeal...

Compound Interest on the Nickle-and-Dimed

Posted on March 27, 2007
In its Fifteen Years of Guidelines Sentencing: An Assessment of How Well the Federal Criminal Justice System is Achieving the Goals of Sentencing Reform, the United States Sentencing Commission, discussing the career offender provisions of the Guidelines, noted that the career offender provision was a sentencing rule "that [has] a disproportionate impact on a particular offender group [namely, African-Americans] but that serve[s] no clear sentencing purpose ...

Makes You Think

Posted on March 22, 2007
In Booker the Supreme Court told us that the Guidelines were but one factor to be considered in deciding the sentence. The Court of Appeals has since confirmed that the Guidelines do not have any more weight than any other factor at sentencing. Review of a sentence in the Court of Appeals is for the reasonableness of the sentence...

Departure Affirmed

Posted on March 16, 2007
Just as there is much backsliding toward a scheme that would effectively re-institute mandatory Guidelines, the Sixth Circuit's decision in United States v. Husein, No. 05-2548 (6th Cir. 3/2/07) (Gilman, Martin & Cole, JJ.), shows clearly how advisory guidelines can work post-Booker...

Dicta About Dicta

Posted on March 16, 2007
It is axiomatic that one panel of a Court of Appeals cannot overrule a decision of another panel. See, Salmi v. Secretary of Health and Human Services, 774 F.2d 685 (6th Cir. 1985). This apparently, however, does not prevent attempting to limit to nothingness the holding of the other panel's decision...

How Much Is Enough?

Posted on March 01, 2007
How much does a district court have to say when imposing a sentence in order to protect that sentence on appellate review? "A district court?s perfunctory statement that it has considered the § 3553(a) factors, even when repeated, does not relieve the court of its obligation to explain how the factors informed its ultimate determination...

Forward We March Into the Past

Posted on February 23, 2007
Two recent Sixth Circuit cases dealing with reasonableness review showcase the continuing problem of how to make both the constitutional and remedial parts of Booker work in practice.The district court in United States v. (Conrad) Smith, No. 05-4425 (6th Cir...

Paradigm Shift or Business As Usual? A Brief History of Reasonableness Review in the Sixth Circuit

Posted on February 13, 2007
The Supreme Court?s decision in United States v. Booker, 543 U.S. 220 (2005), provided the opportunity for a wholesale re-examination of the federal sentencing scheme that had held judges, defendants and practitioners alike in thrall for some 17 years...

Advance Notice Still Required Post-Booker for Upward Variance/Departure

Posted on December 29, 2006
Good news for the defense on an issue that has divided the circuits. Federal district courts in the Sixth Circuit must give advance notice to defendants under Rule 32(h), Fed. R. Crim. P., if they are considering imposing a sentence above the now advisory guideline range, even after the Supreme Court?s Booker decision which rendered the guidelines advisory rather than mandatory...

Back to the (State) Drawing Board

Posted on December 07, 2006
Very interesting opinion issued today in US V. Morris, No. 05-2133 ( Dec. 7, 2006). The Sixth Circuit upheld the district court's dismissal of a federal drug and gun indictment, based on ineffective assistance of counsel at state level during early plea negotiations...

En Banc Review of the Tolling of Supervised Release

Posted on December 04, 2006
Blog readers may recall a previous post about the district court practice of tolling the term of supervised release when a defendant will be deported after serving his term of imprisonment. The Sixth Circuit is the only circuit that has endorsed this tolling practice...

Objection to "harsh" sentence = preserved constitutional objection

Posted on November 02, 2006
In what is arguably dictum, a panel of the Sixth Circuit has adopted a standard for preserving constitutional objections to a sentence. In United States v. Triana, 06a0409p.06, No. 05-3173 (6th Cir. November 2, 2006), (available here), in an opinion written by District Judge Marbley, (sitting by designation), Judge Marbley and Judge Martin found that defense counsel's objection to the "harshness" of Triana's sentence was sufficient to preserve a constitutional objection to the sentence...

Cross-Referencing to Achieve a Higher Sentence

Posted on August 23, 2006
By: Julie Vandegrift, Paralegal for Federal Defender Services of Eastern Tennessee, Inc., ChattanoogaU.S.S.G. § 2K2.1, the guideline for being a felon in possession of a firearm, contains a section which allows for cross-referencing "if the defendant used or possessed any firearm or ammunition in connection with the commission or attempted commission of another offense" or with the knowledge that it would be so used...

Retreat Toward Mandatory Guidelines - Part II

Posted on August 16, 2006
The next round of post-Booker litigation didn?t have to wait long ? a day, in fact. In United States v. Cage, No. 05-5241 (6th Cir. 8/15/06), a panel of the Court finds that a "district court does not err in viewing the Guidelines as a presumptively reasonable starting point and ?considering the Sentencing Guidelines and the Guideline ranges before the court does anything else...

Sixth Circuit Retreats Further Toward Mandatory Guidelines

Posted on August 14, 2006
Today a panel of the Sixth Circuit has moved the Court further toward reinstating the old system of mandatory Guidelines in its first opinion reversing a sentence for being substantively unreasonable. United States v. Davis, No. 05-3784 (6th Cir. 8/14/06)...

Reasonableness Review: The "Paradigm" and the "Peacekeeper"

Posted on August 09, 2006
Today a panel of the Sixth Circuit affirmed a 100% upward "variance" from an advisory Guideline range of 0 - 6 months to 12 months for (1) transporting in interstate commerce a motor vehicle that the defendant knew was stolen, in violation of 18 U.S...

Guidelines Sentence Reversed As Unreasonable

Posted on July 10, 2006
The refinement of "reasonableness" review continues with the Sixth Circuit?s decision in United States v. Vonner, __ F.3d __ (6th Cir. 6/29/06), 2006 WL 1770095. Vonner was charged with distributing at least 5 grams of cocaine with a Guidelines range of 108 - 135 months (and a 5-year mandatory minimum)...

REDUX: Tolling of Supervised Release During Deportation

Posted on June 30, 2006
Several months ago, this writer posted about the Sixth Circuit's position that the district court has authority to order that a term of supervised release may be tolled while a defendant is out of the United States after being deported. See US v. Isong, 111 F...