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Federal Judiciary

Sixth Circuit Blog

Case summaries and commentary by Federal Defenders of the Sixth Circuit.

Post Frequency: 2/day

Last Entry: November 02, 2020 at 09:14:00

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...

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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...

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