Federal Judiciary

Two Phones Does Not Provide Reasonable Suspicion to Search

Posted on November 02, 2020
                     ?? ??When courts decide whether a warrantless search is ?reasonable,? and therefore constitutional, they essentially ask if the ends justify the means...

Strict Liability Enhancement for Possessing a Stolen Firearm Survives Havis, Rehaif

Posted on October 16, 2020
The sentencing guideline for unlawful possession of a firearm increases the offense level if the firearm was stolen. This enhancement applies on a strict liability basis; it does not require any mens rea. The Sixth Circuit had previously approved holding defendants strictly liable for possessing stolen firearms, noting the commentary to the guidelines states that the enhancement applies regardless of whether the defendant knew or had reason to know the firearm was stolen...

Admission of Defendant?s Racist Rant Violates Rules 403, 404

Posted on October 16, 2020
Does after-hours racism reflect poor business judgement? That question is the crux of the Sixth Circuit?s recent decision in United States v. Hazelwood. The government charged multiple employees at a large gas company with conspiracy to commit wire fraud...

Giving Officers a Tour of Your Marijuana Grow Operation Constitutes Consent to Search

Posted on October 08, 2020
 In United States v. Blomquist, the Sixth Circuit held a search of the defendant's property that included an expansive marijuana grow operation did not violate the Fourth Amendment where the defendant voluntarily led them on a detailed tour of the grounds and discussed his operation with them at length...

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Unfiltered: Court Upholds Obstruction Enhancement Imposed for Defendant's Facebook Post

Posted on September 30, 2020
Facebook often provides a goldmine of information in litigants in civil and criminal actions. For Harry French, it led to an obstruction of justice enhancement and a lengthier sentence.Prior to his sentencing for carjacking and possession of a firearm in furtherance of a crime of violence but prior to his sentencing, French, apparently using a contraband cell phone while in custody, posted a message on his Facebook page referring to one of the co-defendants who testified against him during his trial, Dequan Blackmon, as a "rat...

Havis Strikes Again: Ohio Convictions for Offering to Sell Drugs are not Career Offender Predicates

Posted on September 28, 2020
 The District Court enhanced Pierre Alston's sentence as a career offender pursuant to USSG § 4B1.1 based on his prior convictions under Ohio Revised Code § 2925.03(A)(1), which criminalizes offers to sell drugs. It did so, however, without addressing whether such convictions qualified as predicate offenses after United States v...

Court defines parameters of filing an out of time 2255 petition

Posted on September 14, 2020
Simmons v. United States Defendant Simmons plead guilty to federal charges, and was sentenced on September 8, 2016.  He did not file a notice of appeal, but two years later, filed a petition pursuant to 28 U.S.C. 2255, and a motion to allow an out of time filing...

 On August 20. 2020, the Sixth

Posted on August 23, 2020
 On August 20. 2020, the Sixth Circuit held Daniel Fleisher?s 447 month sentence for sexual exploitation of a minor and receipt and distribution of visual depictions of real minors engaged in sexually explicit conduct was not procedurally or substantively unreasonable...

When the government must do more, but had its chance

Posted on July 18, 2020
United States v. Bourquin clarifies the government's burden when it seeks to apply a seldom-used guidelines provision. The court's instructions for remand are where defense attorneys may want to take a close look.Bourquin called in a false tip to the FBI about a plot to attack a former federal prosecutor...

Pulling back on Havis?

Posted on July 18, 2020
In United States v. Havis, the en banc Sixth Circuit put a stop to expanding the sentencing guidelines through application notes. The court held that Guidelines § 4B1.2's definition of "controlled substance offense" [1] did not include attempt crimes, and the Sentencing Commission couldn't add attempts to the definition through its application notes...

Plain Error and Rehaif

Posted on July 18, 2020
After the U.S. Supreme Court's decision in Rehaif v. United States, 139 S. Ct. 2191 (2019), when the government prosecutes a person on a felon-in-possession charge under 18 U.S.C. § 922(g)(1), it must prove that the person knew s/he previously had been convicted of a felony...

"Double-Counting" under USSG 2K2.1; United States v. Fugate

Posted on July 12, 2020
A defendant who admitted that he sold firearms, some of which he knew were stolen, to drug traffickers and gang members was subjected to dual four-level enhancements under U.S.S.G. § 2K2.1(b): one under 2K2.1(b)(5) for trafficking in firearms, and the other under § 2K2...

District Court may consider Apprendi?s impact when deciding a First Step Act case

Posted on July 02, 2020
          In 1997, Robert Ware was convicted by a jury of conspiring to distribute and possess with intent to distribute cocaine (21 U.S.C. §846); conspiring to distribute and possess with intent to distribute cocaine base (crack) (21 U...

The First Few Steps of First Step Act Litigation

Posted on June 28, 2020
The First Step Act of 2018 is just under two years old, and so the contours of the rights and remedies it created are just starting to come into view. The Sixth Circuit provided some more clarity this week in a handful of published and unpublished cases...

The Sixth Circuit Picks a Side in the ?Different Location? Debate

Posted on June 28, 2020
Add captionThe U.S. Sentencing Guidelines were supposed to make sentencing simpler. Practitioners know that there is nothing simple about them. The Guidelines manual is a hefty book and cases interpreting these provisions fill the Federal Reporters and Federal Appendices interpreting the Guidelines...

Sixth Circuit Holds that Ohio Felony Drug Trafficking is a "Controlled Substance Offense."

Posted on June 08, 2020
Like every other circuit, the Sixth Circuit has produced a lengthy scroll of published cases dealing with predicate offenses under the First Step Act and the Guidelines' career offender provision. The Court's opinion in United States v. Smith continues that trend...

Court Again Leaves a Guilty Plea in Place

Posted on June 05, 2020
Once bound to a plea agreement with the Government, it is often difficult for a defendant to find his way out of that agreement. The same holds true for Phillip Watkins. Ninety-eight days after the district court accepted his guilty plea to conspiring to possess and distribute heroin (resulting in injury) and to witness tampering, Mr...

News (Not News): Court Again Upholds Broad Wiretap Authorization

Posted on June 04, 2020
In the spring of 2017, DEA agents began investigating a large-scale drug trafficking operation operated by brothers Yusef Phillips and Ray Anthony Lee. Using evidence they obtained over the many months of their investigation, DEA agents obtained permission to tap Phillips and Lee's cell phones...

There Are No Shortcuts In Seeking Compassionate Release...Even During a Pandemic.

Posted on June 02, 2020
If you practice criminal defense on any level, you are aware of the profound threat COVID-19 poses to local jails, and both state and federal prisons. In many instances, it is difficult, if not impossible, to practice social distancing in facilities that were already overcrowded before the pandemic struck...

When is a Defendant Eligible for Resentencing under the First Step Act? Sixth Circuit Joins Sister Circuits in Issuing a Favorable Ruling.

Posted on June 01, 2020
Is a defendant's eligibility for resentencing under the First Step Act tied to his or her statute of conviction or the record of conviction as a whole? In United States v. Boulding, the Sixth Circuit joined its sister circuits in affirming the former...

Big Win on a First Step Act case - pro-se defendant!!!

Posted on May 18, 2020
Back in 2006, Defendant Marty Smith was sentenced to 240 months, despite the fact that his Guidelines range was 168-210 months.  This was due to the fact that the Government had filed a notice pursuant to 21 U.S.C. 851, raising his mandatory minimum to 20 years (240 months)...

Court holds that no "proximate cause" required to be proven in death overdose case

Posted on May 11, 2020
Pursuant to 21 U.S.C. § 841(b)(1)(c), a defendant's statutory sentencing range is increased from 0-20 years to 20 years to life if "death or injury results from the use of such substance."  The question raised in United States v. Jeffries 18-4081 was: does the Government have to prove proximate cause between the defendant's actions and the death?  In a In a 2-1 decision, the Sixth Circuit held that no such proximate cause is necessary...

US v Brown & the Categorical Approach: Enter at Your Own Risk

Posted on April 26, 2020
Legend has it that somewhere in the underworld, Sisyphus keeps pushing a boulder up a hill. Every time he summits, he's forced to watch the boulder roll all the way down. Somewhere in Tennessee, David Brown is giving Sisyphus a run for his money. For fourteen years, Brown has litigated a felon-in-possession charge...

Good-Faith Suspicions

Posted on March 16, 2020
Today, a look at the Sixth Circuit's March 11 decision in United States v. Gilbert. (Your blogger has a bit more familiarity with this case than might be typical--he was counsel for the defendant on appeal.)Gilbert sought to suppress evidence found when police searched his house, arguing that the warrant lacked probable cause and the good-faith exception did not apply--and more specifically, that even if there was some evidence that Gilbert sold drugs, there wasn't a sufficient "nexus" between drug trafficking and his home...

Plenary Resentencing Denied in

Posted on March 05, 2020
Plenary Resentencing Denied in First Step Act Case          In a published order on March 4, 2020, the Sixth Circuit held in United States v. Alexander that a person seeking a sentence reduction under the First Step Act (FSA) is not entitled to a de novo resentencing hearing...

United States v. Davis is retroactive

Posted on March 05, 2020
United States v. Davis is retroactive           John Franklin made a motion for authorization to file a second or successive motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255...

Who Decides? The Sixth Circuit Says, "Not Us."

Posted on February 23, 2020
?Prison is danger in a box.??Shon Hopwood, Law Man: My Story of Robbing Banks, Winning Supreme Court Cases, and Finding Redemption 69 (2012)?It?s unexplainable having a weight like [probation] on your shoulders, knowing you could lose your freedom any given second...

After Havis, an Offer to Sell is not a ?Controlled Substance Offense?

Posted on February 14, 2020
Does the Texas offense of possession with intent to distribute qualify as a ?controlled substance offense? under the guidelines? In United States v. Serrano, the Sixth Circuit held that it does not. Serrano was convicted under a statute that prohibited manufacturing, delivering, or possessing with intent to deliver a controlled substance...

What Constitutes a "Covered Sex Crime" under U.S.S.G. § 4B1.5(b)?

Posted on February 01, 2020
Is a conviction for engaging in a child exploitation enterprise under 18 U.S.C. § 2252A(g) sufficient to merit a five-level increase as a "covered sex crime" under U.S.S.G. § 4B1.5(b)? In United States v. Hollon, the Sixth Circuit said yes. Defendant Randall Hollon pleaded guilty to engaging in a child exploitation enterprise in violation of 18 U...

Underlying predicate crime is not an element of 18 U.S.C. § 2422(b)

Posted on March 29, 2011
In United States v. Hart, No. 09-6554 (Mar. 29, 2011), the Sixth Circuit rejected the defendant's argument that the jury had to agree unanimously on the predicate crime giving rise to a federal charge under 18 U.S.C. § 2422(b) for knowingly using "interstate commerce to persuade, induce, entice, or coerce 'any individual who has not attained the age of 18 years, to engage in ...

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