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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

Shooting Pepper Spray at a Person Without Justification, Mich. Comp. Laws § 750.224d(2) = "Crime of Violence"

Posted on March 29, 2011
(Shooting pepper spray into the air while running = bad idea.) In United States v. Mosley, 09-2359 (Mar. 29, 2011), the Sixth Circuit found that a misdemeanor conviction for shooting pepper spray at a person without justification in violation of Mich...

Judges have to find a lot of facts to impose the official victim enhancement pursuant to U.S.S.G. § 3A1.2(c)(1)

Posted on March 25, 2011
In order to apply the official victim enhancement under U.S.S.G. § 3A1.2(c)(1), the court must find that ?the defendant or a person for whose conduct the defendant is otherwise accountable . . . knowing or having reasonable cause to believe that a person was a law enforcement officer, assaulted such officer during the course of the offense or immediate flight therefrom...

Proffer Info in PSRs

Posted on March 24, 2011
It's not my blogging week, so I'm sorry if I'm barging in on my co-bloggers. But this issue has been popping up a lot lately, so I felt an irresistible impulse to post. Forgive me, please, if this post is rude! United States v. Jackson, No. 09?1630 (6th Cir...

Why can?t defense attorneys ever manage to preserve procedural reasonableness objections?

Posted on March 23, 2011
As recent cases have pointed out, procedural reasonableness objections never seem to get preserved unless the district court forgets to ask the Bostic question. See, e.g., United States v. Wilkins, No. 09-1890 (6th Cir. March 23, 2011) (unpublished); United States v...

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Carradine---Seeking Cert

Posted on March 18, 2011
FYI on Carradine v. United States, No. 10-8937 (Feb. 10, 2011). Filed for cert. Gov. has waived right to respond. Distributed for conference on March 18. See Oct. 1 entry for more info on this case. (6th Cir. said FSA not retroactive.)

Pepper Decided!!!!! Good News!

Posted on March 18, 2011
You have probably already heard about the Supreme Court's recent decision in Pepper v. United States, No. 09?6822 (Mar. 2, 2011). But it's a great case and deserves noting here.The Court decided that when a sentence has been set aside on appeal and a case remanded a district court may consider evidence of a defendant?s post-sentencing rehabilitation and such evidence may support a downward variance...

Plain-Error Review: Object in Bold Colors

Posted on March 18, 2011
Yes, we know the lesson, but once again we are reminded of the importance of preserving our issues for appeal. United States v. Dumas, No. 10-3013 (6th Cir. Mar. 16, 2011) (unpublished). Panel of Judges Gilman, Gibbons, and Cook. Supervised release revocation...

One More Post: Money Laundering

Posted on March 18, 2011
(Tried to find a "laundering" pic.) United States v. Crosgrove, No. 08?4650 (6th Cir. Mar. 18, 2011) (to be published). Panel of Judges Merritt, Rogers, and White. After a trial, D convicted of conspiring to commit mail fraud (violation of 18 U.S.C. § 371) and conspiring to launder money (violation of 18 U...

Child porn: printed pics or virtual, copies count

Posted on March 07, 2011
What if my client was just really good about backing up his hard drive and made copies of his digital child pornography that way? The Sixth Circuit, in United States v. McNerney (found here), recently ruled those copies count for the enhancement for number of images under U...

THE SIXTH CIRCUIT'S SCOTUS TRACK RECORD

Posted on February 24, 2011
The Cincinnati Enquirer recently ran an article (link attached) in which the Sixth Circuit's track record in the United States Supreme Court (0-15 since 2008) was discussed. Of interesting note was the fact that Judge Merritt agreed to be interviewed for the article...

Where is the AEDPA line? -- Wherever they want it to be

Posted on February 15, 2011
Tibbets v. Bradshaw, a published decision issued today (available here), is perfectly emblematic of the state of habeas death penalty jurisprudence in the Sixth Circuit. There are two sides, they disagree on the outcome, and they do not even seem to be applying the same law...

Convicted on her statements alone -- How much corroboration is enough?

Posted on February 14, 2011
How much evidence must the prosecution introduce to corroborate a defendant's out of court confession? Not much, according to the Sixth Circuit in US v. Ramirez, a published decision issued today (available here). The defendant, who worked as the quality assurance manager at a cheese cutting and wrapping company, was convicted on a number of counts for participating in a scheme to hire illegal aliens...

No connection between gun and drugs found in car

Posted on February 11, 2011
It is rare for the Sixth Circuit to find no sufficient connection between a firearm and drugs when both are in the same vehicle. The split-decision in US v. McKenzie (unpublished), available here, provides some light for the often-raised challenge to enhancements under U...

Are Affidavits Enough? - Actual Innocence & Equitable Tolling

Posted on February 09, 2011
Evidence of actual innocence as a gateway to equitable tolling of a habeas petition is discussed in the unpublished opinion, Turner v. Romanowski, No. 07-2352 (available here). Petitioner sought equitable tolling of a time-barred petition through an actual innocence claim, pursuant to Schlup v...

Reversal in CP Receipt case -- Inadequate Guilty Plea Failed to Distinguish Receipt v. Possession

Posted on February 07, 2011
In US v. Szymanski,a published decision issued today (available here), the Sixth Circuit reverses a CP receipt conviction and five-year (mandatory minimum) sentence, clarifying the difference between CP receipt and possession. Implicit in the ruling is that the Government cannot obtain a conviction for CP receipt merely by showing the presence of CP on a computer...

Reversal of Consecutive Federal Sentence

Posted on February 07, 2011
In U.S. v. Bowman, a published opinion available here, the Sixth Circuit reversed a federal sentence imposed consecutively to an undischarged state sentence. The defendant pled guilty in federal court to two counts of possession and distribution of ecstasy and BZP, and pled guilty in state court to violating probation for the same two offenses...

Sixth Circuit rejects constitutional challenges to ten-year mandatory minimum for enticing a minor

Posted on January 24, 2011
In United States v. Hughes, Case No. 09-5787 (6th Cir. Jan. 24, 2011), the Sixth Circuit rejected a defendant's challenges to his ten-year mandatory minimum sentence pursuant to 18 U.S.C. § 2422(b) for attempting to entice a minor to engage in a sexual act...

CP and Witness Liability

Posted on January 20, 2011
Doe v. Boland, No. 09--4281 (6th Cir. Jan. 19, 2011) (published). Panel of Judges Sutton, Griffin, and Bertelsman (E.D. Ky.). Issue: "do the federal child-pornography laws exempt those who violate the law in the course of providing expert testimony?"Defendant had been preparing expert testimony and exhibits for trial...

Grant decided en banc: Rule 35s

Posted on January 18, 2011
This discussion is long, but this issue is a big one and this decision is one for which many of us have been waiting....United States v. Grant, No. 07?3831 (6th Cir. Jan. 11, 2011) (published). En banc. Majority of Chief Judge Batchelder and Judges Gibbons (authored majority opinion), Martin, Boggs, Gilman, Rogers, Sutton, Cook, McKeague, Griffin, and Kethledge...

Attention Appellate Attorneys: Read Plea Agreements Carefully!

Posted on January 18, 2011
United States v. Jones, No. 09-3970 (6th Cir. Jan. 18, 2011) (unpublished). In Jones, the Sixth Circuit overturned a conviction under 18 U.S.C. 924(c) on a technicality. 924(c) contains two separate offenses:(1) using or carrying a firearm during and in relation to a drug trafficking crime, and (2) possessing a firearm in furtherance of a drug trafficking crime...

Appellate Waivers and IAC

Posted on January 12, 2011
Zvonko Sarlog v. United States, No. 09--3033 (6th Cir. Jan. 7, 2011) (unpublished). Panel of Judges Boggs, McKeague, and Quist (W.D. Mich.). 2255 case.District court denied the 2255. Claim was IAC: failure to file notice of appeal. Petitioner claimed he'd requested an appeal...

More IAC---Trial in an Hour, Anyone?

Posted on January 12, 2011
Fuller v. Sherry, No. 09--2147 (6th Cir. Dec. 30, 2010) (unpublished). Panel of Judges Boggs, McKeague, and Quist (W.D. Mich.). Petitioner was appointed new defense counsel one hour and twenty-eight minutes before jury selection began in his state case...

Crack Ratio and Sentencing Courts' Discretion

Posted on December 28, 2010
United States v. Johnson, No. 09--2173 (6th Cir. Dec. 28, 2010). Unpublished. Panel of Judges Martin, Moore, and Gwin (N.D. Ohio). Appeal after Spears remand. Defendant was resentenced to 110 months (same as his original sentence). Rather than expressing agreement or disagreement with the crack guidelines, the sentencing court asserted that Congress had authorized the 100-to-1 ratio and deemed the courts an improper forum for reconsidering the ratio...

Happy New Year!!!!

Posted on December 28, 2010
Enjoy your New Year's celebrations and I hope 2011 is peaceful for you all!

Shooting into Occupied Structure

Posted on December 28, 2010
United States v. Ruvalcaba, No. 09?3782 (6th Cir. Dec. 22, 2010) (recommended for publication). Panel of Judges Martin, Siler, and Bell (W.D. Mich.). Crime of Violence:Issue was whether the defendant?s two prior convictions for discharging a firearm at or into a habitation (in violation of Ohio Revised Code § 2923...

Happy Holidays

Posted on December 22, 2010
Just wanted to wish all the readers of this blog Happy Holidays. May 2011 be full of peace and justice!

Almany on Remand: A Must Read

Posted on December 16, 2010
So, Mr. Almany got his extra five years back in light of Abbott. United States v. Almany, No. 08--6027 (6th Cir. Dec. 16, 2010) (to be published). Panel of Judges Merritt, Martin, and Cole."The five year firearms sentence imposed under 18 U.S.C. § 924(c)(1)(A) is hereby restored in light of Abbott v...

Cert Grant: Rehab and Longer Sentences

Posted on December 14, 2010
Tapia v. United States, No. 10-5400 (cert granted Dec 10, 2010). Issue: May a dist ct give a defendant a longer sentence to promote rehab (Eighth and Ninth Circuits say yes), or is such a factor prohibited (as Second, Third, Eleventh, and D.C. Circuits have concluded)?Lower ct: 376 F...

Ammo'ed and Dangerous

Posted on December 14, 2010
United States v. Coleman, No. 09--5052 (6th Cir. Dec. 10, 2010) (Judge Rose of S.D. Ohio delivered the opinion, in which Judge Griffin joined; Judge Gilman concurred in part and dissented in part.) * Four-level enhancement for 23 rounds of ammunition that supposedly facilitated distribution of marijuana...

Confession overturned as involuntary - Habeas Granted!

Posted on December 09, 2010
Today the Court rendered a decision in Dixon v. Houk. 10a0372p.06 The essential holding of the Court is - where a defendant refuses to answer after Miranda warnings, and later confesses during further interrogation without warnings, subsequent re-warning does not "cleanse" the otherwise bad confession...

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