Latest Seventh Circuit and Supreme Court Criminal Case Summaries

Supreme Court Activity Since Last Update

The Supreme Court has issued one opinion[s] in criminal cases since the last update and one new grant[s] of certiorari.  For a complete list of criminal issues decided and pending in the Supreme Court this Term, click HERE.

In Metrish v. Lancaster, No. 12-547, the Supreme Court resolved the following questions granted for review as follows:  (1) Whether the Michigan Supreme Court's recognition that a state statute abolished the long-maligned diminished-capacity defense was an "unexpected and indefensible" change in a common-law doctrine of criminal law under this Court's retroactivity jurisprudence. See Rogers v. Tennessee, 532 U.S. 451 (2001), NO and (2) whether the Michigan Court of Appeals' retroactive application of the Michigan Supreme Court's decision was "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement" so as to justify habeas relief. Harrington v. Richter, 131 S. Ct. 770, 786-87 (2011)? NO.

To read the full opinion, click HERE. 

The new grant of certiorari is in Fernandez v. California, No. 12-7822 on the following question:

Whether, under Georgia v. Randolph, a defendant must be personally present and objecting when police officers ask a co-tenant for consent to conduct a warrantless search or whether a defendant’s previously stated objection, while physically present, to a warrantless search is a continuing assertion of 4th Amendment rights which cannot be overridden by a co-tenant.  You can access more information about the case on SCOTUSBlog HERE.

Seventh Circuit Activity Since Last Update

The Seventh Circuit issued 7 precedential opinion[s] in criminal cases since the last update, as summarized below.  To view summaries of all Seventh Circuit criminal cases decided since August 2012 to the present, categorized by issue, click HERE.

The word “maintain” in enhancement for maintaining a premises for purposes of manufacturing or distributing drugs should be interpreted in same was as word is interpreted for 18 USC 856 offense of maintaining a stash house.  United States v. Flores-Olague, No. 12-2232.  The defendant pleaded guilty to drug offenses, and the district court applied a relatively recently enacted sentencing enhancement  for “maintaining a premises for the purposes of manufacturing or distributing a controlled substance,” U.S.S.G. §2D1.1(b)(12).  This enhancement was enacted as part of the Fair Sentencing Act.  After reviewing the relevant application notes and background, the court noted that it interpreted the word “maintain” in the guideline in the same manner it interpreted the word for 18 U.S.C. § 856 offenses (maintaining a “stash house”).  In both contexts, to “maintain” a premise for manufacturing or distributing drugs, or a stash house, ownership is not dispositive—the defendant only need be more than a casual visitor.  Moreover, a defendant’s drug trafficking activities at other locations are irrelevant to the “maintaining the premises” inquiry so long as customers knew they could—and did—purchase drugs from the defendant at the premises in question.  Finally, the Application Note directs a court to compare the frequency of illegal and legal activities at the premises, which can be problematic when a premises is also used as a primary residence, the facts of each case must be considered in tandem with all the factors relevant to the enhancement.  In this case, the enhancement was properly applied. 

Obstruction of justice enhancement based upon perjury at trial vacated where district court failed to make factual findings on elements of perjury.  United States v. Parker, No. 12-1991.  In prosecution for embezzlement, the Court of Appeals vacated the district court’s obstruction of justice enhancement.  The district court premised the enhancement on the defendant’s testimony at trial, which the court found to constitute perjury.  However, the court of appeals noted that to apply the enhancement based upon perjury, a district court must make findings as to all the factual predicates necessary for a finding of perjury:  false testimony, materiality, and willful intent.  The district court in this case failed to make the requisite factual findings.  Indeed, regarding “willfulness,” the court noted that although the defendant’s testimony was false, “she may have actually believed her testimony was not a lie.”  Nor would the court look to the record itself for support of the enhancement, given the extent of ambiguity in the record concerning whether the defendant’s testimony was simply false or full-blown perjury.  Accordingly, the court remanded to the district court for more findings. 

Court reminds district court’s not to omit advisements required during Rule 11 proceedings.  United States v. Davenport, No. 12-3358.  Upon the grant of a motion to dismiss pursuant to the filing of an Anders brief, the Court of Appeals found that the district court’s failure to advise the defendant at his change of plea hearing of his right to testify if he went to trial was not plain error.  However, the court also had this to say, “We note, however, that these kinds of omissions occur all too frequently during plea colloquys, and we caution district courts to use more care. Not every omission will be harmless, and full compliance with Rule 11 is easily achieved.” 

Leader/Organizer enhancement affirmed, but only after the court criticized the vague criteria provided in the Guidelines for imposing the enhancement.  United States v. Rosales, No. 12-3531.  In prosecution of the defendant for his involvement in stealing truckloads of merchandise, the Court of Appeals affirmed a leader/organizer enhancement, but only after calling into question the multi-factor test called for by the guidelines. The court at length criticized the Guidelines 7-factor test for determining whether a defendant is a leader/organizer, noting that the majority of the factors are vague or redundant.  More confusion is added by the manager/supervisor provision, which has the same factors as the leader/organizer enhancement.  Regardless, no matter how the defendant’s role was viewed, he was a leader/organizer of the operation sufficient to warrant the enhancement.  NOTE:  This case contains a good analysis of everything which is wrong with the leader/organizer enhancement.  Unfortunately, it doesn’t provide much in the way of an alternative.  If, however, your client is facing this enhancement, this is a case you will want to read closely.

District court can usually satisfy Rule 32(i)(3)(B) requirement to rule on objections to PSR by adopting recommendations of the PSR.  United States v. Brown, No. 12-3413.  The Court of Appeals rejected the defendants argument that the district court violated Federal Rule of Criminal Procedure 32(i)(3)(B), which requires a district court to rule on any disputed matter in the PSR that will affect the court’s sentencing determination.  The court noted that the burden imposed on district court’s is “minimal,” and that it can usually be satisfied by adopting the proposed findings in the PSR, even as to contested facts, so long as the PSR articulates a sufficiently clear basis for the sentence and the reviewing court can be sure that the district court made a decision of design rather than convenience.  In this case, the district court’s few comments at sentencing in combination with its adopting the findings in the PSR were sufficient to satisfy the Rule. 

Only one conviction for 922(g) offense permissible, even if defendant was disqualified under more than one subdivision of the statute or possessed more than one weapon on the same occasion.  United States v. Bloch, No. 12-2784.  On appeal by the defendant, the government acknowledged an error made at sentencing, but not raised by the defendant.  Specifically, a jury found the defendant guilty of two 922(g) offenses—one based upon his status as a felon and another based upon his status as a domestic-violence misdemeanant.  The government noted, and the Court of Appeals agreed, that a person cannot be convicted of more than one 922(g) crime based on a single incident of possession.  Although the government is free to pursue multiple theories of violation at trial, only one conviction may result under 922(g) for a single incident of possession, even though the defendant may belong to more than one disqualified class.  Moreover, a single act of possession can yield only one conviction under 922(g) even if the defendant possessed multiple firearms at the same time.  Accordingly, the defendant’s two 922(g) convictions merged in this case, and one conviction must be vacated.  Because the defendant received two, 120-month consecutive sentences on the two counts, his sentence would be reduced on remand by 120-months.  NOTE:  Not good to have the government point out a 120-month error that trial and appellate counsel missed.

Where inferences would support that mistakes in an affidavit in support of a warrant both reckless or negligent disregard for the truth, the ruling of the district court will not be overturned.  United States v. Williams, No. 11-3129.  The Court of Appeals affirmed the district court’s denial of a motion to suppress.  In the district court, a Franks hearing was conducted.  The defendant argued that the affidavit used in support of the search warrant in the case against him suffered from incorrect and misleading information.  Looking at the specifics in the case, the court concluded that a reasonable judge could have inferred either that the police acted with reckless disregard for the truth or that their errors and omissions reflected only honest haste and negligence.  Supporting the inference that the officers’ mistakes were made through haste, rather that recklessness, was the fact that they also left out information which alone would have been sufficient to establish probable cause.  Although the court at length criticized the government for the manner in which the affidavit was prepared and its contents, under the prevailing clear error standard of review, the Court of Appeals refused to overturn the judgment of the district court.   

Supreme Court Activity Since Last Update

The Supreme Court has issued no opinion[s] in criminal cases since the last update and no new grant[s] of certiorari.  For a complete list of criminal issues decided and pending in the Supreme Court this Term, click HERE.

Seventh Circuit Activity Since Last Update

The Seventh Circuit issued 2 precedential opinion[s] in criminal cases since the last update, as summarized below.  To view summaries of all Seventh Circuit criminal cases decided since August 2012 to the present, categorized by issue, click HERE.

Testimony of officer regarding coded drug slang on recordings was permissible expert testimony.  United States v. Collins, Ho. 11-3098.  In prosecution for a large scale drug conspiracy, the defendant argued that the district court improperly admitted into evidence certain tape recordings at trial, and second, that the district court erred in allowing an expert to testify regarding “coded drug-dealing language” on the tapes.  He also challenged a “manager or supervisor” enhancement at sentencing.  The Court of Appeals rejected all these arguments.  The defendant first argued that the admission of the defendant talking to a co-defendant locked a proper foundation under Rule 901(a).  The court, however, found that the government provided sufficient evidence to establish a chain of custody for the tapes and their accuracy and trustworthiness.  The court also found that the agent’s testimony where he “decoded” the drug slang used on the tapes was properly admitted.  The testimony offered in this case was similar to that affirmed by the court on numerous other occasions.  Finally, the factors necessary to establish a “manager or supervisor” enhancement were sufficiently proven. 

404(b) evidence to establish motive is most relevant when a defendant completely denies having committed a crime.  United States v. Roux, No. 10-2192.  A jury convicted the defendant of inducing or coercing a minor to create sexually explicit images, in violation of18 U.S.C. § 2251(a). Roux appeals, contending that the district court erred in admitting certain evidence against him and that the government committed certain missteps at trial which should have prompted the court to declare a mistrial. The Court of Appeals affirmed.  On the evidentiary issues, the defendant first argued that the court erred by admitting into evidence under Rule 404(b) information establishing that the defendant sexually abused two girls who were the sisters of the girl depicted in the images for which the defendant was charged.  The court found that was properly admitted to show motive in light of the defendant’s defense that he did not take an inappropriate pictures and that he had never sexually abused anyone.  When a defendant argues he does not commit a crime, motive evidence becomes highly relevant.  The defendant also objected to the admission of some booking photos of the defendant to establish his appearance at the time of the alleged conduct (he had lost considerable weight by the time of trial), but the Court of Appeals found that, unless one knew the photos were booking photos in advance, one could not tell from just looking at them that they were booking photos.  Thus, there was no risk of prejudice from jurors inferring that he had been arrested or incarcerated previously from the photos.  On the mistrial issue, the government introduced several recorded phone calls made while the defendant was in jail.  Although the parties agreed that there would be no mention of the fact that the recordings were made while the defendant was in jail, the prosecutor referred to them once as “jail phone calls” in the presence of the jury.  Although the defendant thought this reference entitled him to a mistrial, the court found this single reference did not prejudice the jury, especially in light of its presumption of innocence instruction.  Rejecting the defendant’s other, less developed issues, the court affirmed.

Supreme Court Activity Since Last Update

The Supreme Court has issued no opinion[s] in criminal cases since the last update and no new grant[s] of certiorari.  For a complete list of criminal issues decided and pending in the Supreme Court this Term, click HERE.

Seventh Circuit Activity Since Last Update

The Seventh Circuit issued 4 precedential opinion[s] in criminal cases since the last update, as summarized below.  To view summaries of all Seventh Circuit criminal cases decided since August 2012 to the present, categorized by issue, click HERE.

Guideline range for supervised release term in SORNA case is 5 years; SORNA is not a “sex offense” as defined in the Guidelines; court must make specific findings on the record linking special conditions of supervised release to the defendant.  In a sweeping decision, the Seventh Circuit in United States v. Goodwin, No. 12-2921, vacated under the plain error standard of review all of the special conditions of supervised release in a SORNA case, finding that the district court failed to make findings on the record linking the necessity of the conditions to the defendant.  As an initial matter, the court first rejected the defendant’s argument that SORNA violates nondelegation principles and therefore is unconstitutional.  Next, the court considered what the proper guideline range was for a SORNA offense.  The PSR relied upon Note 1 to USSG § 5D1.2 for a finding that the guideline range was five years to life.  This guideline provides for a maximum life term of supervised release for a “sex offense.”  Application Note 1 to the guideline specifically lists a failure to register as an offense falling under this definition.  Nevertheless, the court found that the Note is “plainly erroneous” in defining a failure to register as a sex offense.  Consequently, the guideline range for the offense is between one and three years pursuant to § 5D1.2(a)(2), increased up to exactly five years because of the statutory minimum term of five years.  Regarding the specific conditions, the court next considered the question of whether the defendant properly objected to the imposition of the special conditions.  The defendant noted that nothing in the record indicated that he received notice that the special conditions might be imposed prior to sentencing.  The government, however, argued that if the defendant did not have an opportunity to object prior to the imposition of the special conditions, he was obligated to object at the time of the ruling in order to avoid the plain error standard.  The court avoided ruling on this issue, finding that even under the plain error standard, all of the special conditions of supervised release had to be vacated.  The court first noted that special conditions of supervised release must meet three requirements.  First, post-release conditions must be reasonably related to the peneological purposes set forth in 3553(a).  Second, special conditions cannot involve a greater deprivation of liberty than is reasonably necessary to achieve the goals of deterrence, incapacitation, and rehabilitation.  Third, the conditions must be consistent with any pertinent statements issued by the Sentencing Commission.  Because the court failed to make any findings for any of the special conditions of supervised release, the court vacated all of the challenged conditions.  Indeed, it went so far as to vacate conditions that were not even challenged on appeal, exercising its sua sponte powers on those conditions because they, too, had no findings in the record to support them.  As to challenges specific to particular conditions, the court found that a condition prohibiting the possession of “material that depicts or alludes to sexual activity” might be unconstitutionally overbroad, noting that it “could block Goodwin from possessing much of the Western literary canon—or arguably even from possessing a slip copy of this opinion.”  For the same reason, it noted that a condition prohibiting the defendant from “receiving or sending any sexually arousing material that is otherwise legal via the internet from visiting any website, including chat rooms or bulletin boards containing any sexually arousing material” could be unconstitutionally overbroad because this conditions was basically an internet version of the other condition.  The court did not, however, ultimately rule upon the constitutionality of the provisions because it vacated the conditions due to a lack of any specific findings.  The other conditions it vacated for this same reason required: installation of internet monitoring software; submission to searches of his person, car, computer, and other property; allowing his computer equipment to be removed for more thorough examinations; and no contact with minors, except in the presence of an adult who is aware of the defendant’s prior sex offense and who has been approved by the probation department.  The two unchallenged conditions the court vacated required him to participate at his own expense in sex offender treatment and mental health counseling “as deemed necessary by the probation officer.”  NOTE:  This case has a number of very important holdings in it.  Most importantly, the case stands for the proposition that a judge must make findings on the record linking a special condition of supervised release to a specific defendant, even if the defendant does not object.  In this case, there was no objection in the district court, but the court vacated nearly all of the conditions under the plain error standard.  Secondly, the case at least strongly suggests that contemplated special conditions should be put into the record prior to sentencing.  The obvious place for this is the PSR.  Finally, the case calls into question the constitutionality of the somewhat common prohibitions on possession of material “alluding to sexual activity” or which is “sexually arousing. “  Make sure every special condition of supervised release in your cases has a factual basis in the record for its imposition.  If it does not, object and cite this case. 

Dan Hansmeier of our office litigated this case. He offers the following practice tips based upon Goodwin:

“(1) On the standard of review on appeal, only concede plain error if the erroneous information is contained in the PSR, but wasn't objected to below. There may be exceptions to this (for instance, if something not in the PSR was clearly discussed at sentencing, and the defendant clearly had an opportunity to voice an objection prior to imposition of sentence), but even so, it's probably best to let the government raise plain error; don't do it for them. Forcing the Court of Appeals to choose standards can benefit us: if they do not want to deal with the issue, we may win on plain error review, which is better than a less deferential standard.  Sometimes a court’s desire to avoid the standard of review issue can benefit our clients.

(2) On the length of supervised release issue, the Court arguably employs a rule-of-lenity-type analysis. As I read it, the Court essentially says that the Guideline is sufficiently unclear, and, thus, we side with the defendant. If that is not explicit, I think it is implied. So, if you have an ambiguous Guideline, Goodwin helps in that respect as well.

(3) On the conditions, the analysis is actually a straightforward application of the controlling statute (3583(d)). When you challenge special conditions, always begin with this statutory language. Stress that this is required by Congress, as recognized by the Court (in other words, this is not some judicially crafted rule that can be altered by judges; it is the law, and judges must enforce it).

(4) The sua sponte portion of the opinion is of particular interest. The Court vacated a sex offender treatment requirement and a mental health counseling requirement on its own. This is surprising considering that Goodwin is a sex offender and other facts in the record indicate that Goodwin arguably had some mental health issues.  The conditions were also "at the direction of the probation officer," which would indicate that, if the probation officer decided against treatment, there would be no treatment, thus making a challenge on appeal premature.  That logic was implicitly rejected by the Court, on plain error review nonetheless. Goodwin appears to be an implicit rejection of McKissic as well, which is the case where the court says that conditions of supervised release should not be overturned on plain error review because they can be challenged in a motion to modify when the individual is actually on supervised release. If the government relies on McKissic, cite Goodwin in response. I cannot see how McKissic is still good law after Goodwin.

This sua sponte portion of Goodwin also calls into question all of these 'treament" programs imposed regularly. At the least, it requires an explicit justification for the programs.  Moreover, there were 4 special conditions we did not challenge and that the Court of Appeals did not address. This makes it crystal clear that the Court had serious issues with the treatment program conditions. It was not that the district court simply failed to justify the conditions. If that were the case, the Court of Appeals would have sua sponte vacated all of the special conditions. There was something about these particular programs, which is even more remarkable in light of the facts of this case.

Ransom demand enhancement applies in a kidnapping case only if the demand was made to a third party, rather than to the victim only.  United States v. Reynolds, No. 12-1206.  In prosecution for kidnapping, the Court of Appeals reversed an enhancement for making a ransom demand pursuant to U.S.S.G. § 2A4.1(b)(1) because no “demand” was made to a third party.  The defendant, along with several others, kidnapped the victim.  They then proceeded to interrogate him about the location of money they believed he had.  The court noted that “ransom” is not defined in the guidelines or its commentary.  The court concluded that the enhancement may only apply if kidnappers’ demands for “money or other consideration” reach someone other than the captured person.  The court noted that the language of the guideline presupposes the existence of a third party.  Moreover, the guideline is the only provision that applies to the Hostage Taking Act, which can only be violated if a person kidnaps another in order to influence a third party.  Finally, although no other appellate court had considered the question, no appellate decision where the adjustment has been applied did so where the defendant did not intend his ransom demands to reach a third party.   

Court of Appeals may dismiss an appeal of a fugitive using the “fugitive disentitlement” doctrine.  United States v. Jacob, No. 12-3208.  In a case where the district court allowed the defendant to travel to Austrailia while on bond prior to sentencing, the Court of Appeals held that the “fugitive disentitlement” doctrine allowed for the  dismissal of his appeal.  The court noted that the Supreme Court has long recognized that dismissal is warranted when a criminal defendant becomes a fugitive. Ortega-Rodriguez v. United States, 507 U.S. 234 (1993); Molinaro v. New Jersey, 396 U.S. 365 (1970); Smith v. United States, 94 U.S. 97 (1876). The Court reasons that an escape from custody “disentitles the defendant to call upon the resources of the Court for determination of his claims,” Molinaro, 396 U.S. at 366, and that this procedure serves to deter future escapees, maintain an “efficient, dignified appellate practice,” and prevent courts from issuing unenforceable judgments, Ortega-Rodriguez, 507 U.S. at 240-42. Although dismissal in these circumstances is discretionary, see id. at 239-40; Gutierrez-Almazan v. Gonzales, 453 F.3d 956, 957 (7th Cir. 2006), because the defendant here remained at large and expressed no interest in returning to serve his prison sentence, the court dismissed his appeal.

Collateral estoppel doctrine applies in criminal cases, but depends on the nature of the ruling to which the doctrine is applied.  Lorea v. United States, No. 11-3223.  Upon consideration of a 2255 petition, the Court of appeals rejected the defendant’s argument that his trial counsel was ineffective.  In response to a motion to suppress, the judge had forbidden the government to offer evidence of what the petitioner had told DEA agents after he allegedly asked for a lawyer. After repeated continuances the judge dismissed the indictment (though without prejudice), on the ground that the delay resulting from the continuances had violated the Speedy Trial Act. Loera was re-indicted and again sought to suppress his statements to the agents. But this time the judge—the same judge—denied the motion on the ground that actually Loera had not told the DEA agents he wanted a lawyer. So the statements were admitted into evidence.  Loera faults his lawyer first for having failed to argue to the district judge that the denial of the motion to suppress in the first round of the criminal proceeding should be binding in the second round—the trial—by virtue of the doctrine of collateral estoppel; and second for having failed to argue in that first round that the delay in the proceeding had violated not only the Speedy Trial Act but also the speedy trial clause of the Sixth Amendment; if so, the dismissal of that proceeding should have been with prejudice.  On the first issue, the court engaged in a lengthy discussion of the applicability of the collateral estoppel doctrine in criminal cases.  Although the doctrine applies to criminal cases, not every ruling has collateral estoppel effect in a subsequent proceeding.  Here, the government did not oppose the defendant’s motion when made the first time because it did not intend to use the statements which were the subject of the motion at trial.  Thus, the granting of the motion was a judicial action, but not the resolution of a dispute.  According to the court, “Let collateral estoppel be applicable to a case such as this and the government will have an enhanced incentive to take an interlocutory appeal from pretrial evidentiary rulings in criminal cases.”  The court also noted that the law of the case doctrine did not apply here because, although the district judge initially suppressed the statements, he did not decide whether the statements should have been suppressed as a matter of law because of the parties’ agreement as to the first motion.  Given that nothing precluded the judge from reconsidering the original motion, trial counsel could not have been ineffective for failing to object to its doing so. 

Supreme Court Activity Since Last Update

The Supreme Court has issued no opinion[s] in criminal cases since the last update and 1 new grant[s] of certiorari.  The Court also dismissed one grant of certiorari as improvidently granted.  For a complete list of criminal issues decided and pending in the Supreme Court this Term, click HERE.

The grant of certiorari was in Burrange v. United States, No. 12-7515 on the following questions:

1. Whether the crime of distribution of drugs causing death under 21 U.S.C. § 841 is a strict liability crime, without a foreseeability or proximate cause requirement.

2. Whether a person can be convicted for distribution of heroin causing death utilizing jury instructions which allow a conviction when the heroin that was distributed “contributed to,” death by “mixed drug intoxication,” but was not the sole cause of death of a person.

Cert petition available HERE.  Eighth Circuit's decision below:  United States v. Burrage, 687 F.3d 1015 (8th Cir. 2012)

The Court also dismissed Boyer v. Alabama as improvidently granted.  The Court had granted cert on the question whether  "a state’s failure to fund counsel for an indigent defendant for five years, particularly where failure was the direct result of the prosecution’s choice to seek the death penalty, should be weighed against the state for speedy trial purposes.”  Concurring opinion by Justice Alito, joined by Justices Scalia and Thomas, and dissenting opinion by Justice Sotomayor, joined by Justices Ginsburg, Breyer, and Kagan, available HERE.    

Seventh Circuit Activity Since Last Update

The Seventh Circuit issued 2 precedential opinion[s] in criminal cases since the last update, as summarized below.  To view summaries of all Seventh Circuit criminal cases decided since August 2012 to the present, categorized by issue, click HERE.

Court overrules U.S. v. Fearns and holds that where a prosecutor references a witness’s prior consistent statement without introducing that statement into evidence, prejudice is not presumed and reversal will only be warranted where the defendant can establish a denial of due process.  United States v. Tucker, No. 12-1281.  After a jury trial for conspiracy to distribute heroin, the defendant argued on appeal that he was denied a fair trial because of misconduct by the prosecutor and the improper admittance of “dual capacity” evidence testimony of a police officer.  The Court of Appeals affirmed, reviewing both issues for plain error.  First, the defendant argued that the prosecutor (1) references prior witness statements not in evidence; (2) improperly commented on the defendant’s decision not to testify; (3) misconstrued the nature of the co-conspirators plea agreements; and (4) improperly referenced familial experiences with heroin that jurors’ shared with the court during voir dire.  During closing argument, the prosecutor suggested that all nine cooperators who testified and whose credibility was attacked by the defendant made consistent statements immediately after they were arrested—statements never admitted into evidence.  The court agreed that the references were improper, but found that the error didn’t warrant reversal.  In reaching this conclusion, the court overruled its decision in United States v. Fearns, 501 F.2d 486 (7^th Cir. 1974).  The court noted that Fearns has been interpreted where prior consistent statements are references without putting those statements into evidence, the prejudice created cannot be eradicated by any action of the trial judge.  Moreover, Fearns imposed a duty on the trial judge to sua sponte declare a mistrial in this circumstance.  The court found this interpretation impose an unreasonable burden on the district court of “having to listen to closing arguments with a hair trigger on the mistrial button—whether defense counsel has launched an objection or not.”  Thus, the court articulated the correct standard that, even if the court finds a comment to be improper when read in isolation, unless the remark, when interpreted through the full context of the record, “so infects the trial with unfairness as to make the resulting conviction a denial of due process,” the court will not reverse under the plain error test.  In this case, applying this test, reversal was not required.  The court also rejected the defendant’s remaining arguments. 

In consolidated cases for sentencing, the district court must calculate a single guideline range for all offenses and cases.  United States v. Tovar-Pina, No. 12-1964.  The defendant had an illegal reentry conviction, a conviction involving the use of stolen checks, and a supervised release revocation arising in multiple jurisdictions.  All of the cases were eventually consolidated into one jurisdiction for purposes of sentencing.  The PSR calculated separate guideline ranges of 24 to 30 months for each conviction.  The judge at sentencing imposed 30-month terms consecutive on the substantive convictions, as well as an additional 24-month consecutive term on the supervised release revocation.  Reviewing for plain error, the court noted that the Sentencing Guidelines instruct courts to determine a single offense level that encompasses all counts of conviction for a given defendant, including those “contained in the same indictment or information,” or as relevant here, “contained in different indictments or information for which sentences are to be imposed at the same time or in a consolidated proceeding.” U.S.S.G. ch. 3, pt. D, intro. comment. Two separate federal grand juries returned indictments against Tovar-Pina—one for the unlawful reentry offense and one for the bank fraud offenses—but the district court was imposing a sentence for both indictments at the same time and in a consolidating proceeding. So, the district court should have applied U.S.S.G. §§ 3D1.4-5 and determined a single offense level, which Tovar-Pina and the government agree on appeal should have been 15 with a criminal category IV, leading to a Guidelines range of 30 to 37 months’ imprisonment on each count, with all counts running concurrently.  Because the court failed to calculate this single range, the Court of Appeals remanded for sentencing. 

Supreme Court Activity

The Supreme Court has issued 2 opinion[s] in criminal cases since the last update and no new grant[s] of certiorari.  For a complete list of criminal issues decided and pending in the Supreme Court this Term, click HERE.

The Supreme Court decided Missouri v. McNeely on Tuesday, April 17, 2013.  The Court held that the natural dissipation of alcohol in the bloodstream does not establish a per se exigency that suffices on its own to justify an exception to the warrant requirement for nonconsensual blood testing in drunk-driving investigations.  A fractured Court issued four separate opinions in the case, which you can read HERE.  As always, SCOTUSblog has an excellent analysis of the case HERE.   

On Tuesday, April 23, 2012, the Supreme Court decided Moncrieffe v. Holder, No. 11-702, as summarized by Sentencing Resource Counsel Jennifer Coffin below:

Applying (and celebrating) the categorical approach, the Supreme Court held today that a state conviction for possession with intent to distribute (for no remuneration) a small amount of marijuana does not constitute “illicit trafficking in a controlled substance” under section 1101(a)(43) of the Immigration and Nationality Act, and is thus not an aggravated felony subjecting a noncitizen to mandatory deportation and ineligibility for certain forms of discretionary relief   Justice Sotomayor wrote for the majority. 

The Court concluded:  This is the third time in seven years that we have considered whether the Government has properly characterized a low-level drug offense as “illicit trafficking in a controlled substance,” and thus an “aggravated felony.” Once again we hold that the Government’s approach defies“the ‘commonsense conception’” of these terms.  Carachuri-Rosendo, 560 U. S., at ___ (slip op., at 9) (quoting Lopez, 549 U. S., at 53). Sharing a small amount of marijuana for no remuneration, let alone possession with intent to do so, “does not fit easily into the ‘everyday understanding’” of “trafficking,” which “‘ordinarily . . . means some sort of commercial dealing.’” Carachuri-Rosendo, 560 U. S., at ___ (slip op., at 9) (quoting Lopez, 549 U. S., at 53–54). Nor is it sensible that a state statute that criminalizes conduct that the [Controlled Substances Act] treats as a misdemeanor should be designated an “aggravated felony.” We hold that it may not be. If a noncitizen’s conviction for a marijuana distribution offense fails to establish that the offense involved either remuneration or more than a small amount of marijuana, the conviction is not for an aggravated felony under the INA.

Here, Adrian Moncrieffe possessed 1.3 grams of marijuana, which was accepted as a "small amount."  Because the meaning of "small amount" was not at issue, the Court did not define the term "small amount."

Justice Thomas, joined by Justice Alito, dissented.

Opinion HERE.  Link to case page on scotusblog HERE.

 Seventh Circuit Activity Since Last Update

The Seventh Circuit issued 1 precedential opinion in criminal cases since the last update, as summarized below. 

Suppression is not a remedy for the use of excessive force where the evidence sought to be suppresses was not discovered through the use of that force.  United States v. Collins, No. 12-3317.  Johnnie Collins fled police officers by car and then by foot after he was stopped for speeding. An officer kicked Collins repeatedly and dosed him with pepper spray, but Collins did not stop resisting until another officer deployed his Taser. Afterward, the officers discovered a bag containing crack and powder cocaine that Collins had discarded during the foot chase, as well as a wad of cash in his pocket. After Collins was charged with possession of crack and powder cocaine with intent to distribute, he moved to suppress the drugs and money on the principal ground that they were obtained through the use of excessive force. The district court denied the motion to suppress, explaining that under United States v. Watson, 558 F.3d 702, 705 (7th Cir. 2009), the use of excessive force during an arrest is not a basis for suppressing evidence. Moreover, the court reasoned, the drugs and money were not seized as a result of the alleged use of excessive force. The Court of Appeals affirmed.  The court first noted that the defendant discarded the drugs prior to any the application of any force.  Thus, there was no “causal” connection between any excessive use of force and the discovery of the drugs.  Secondly, in Watson, the court held that suppression was not a proper remedy for the use of excessive force collateral to the seizure of evidence. The court here followed that precedent.

The Seventh Circuit issued 10 precedential opinions in criminal cases since the last update, as summarized below.

Illinois offense of aggravated stalking is a crime of violence under the residual clause of the ACCA.  United States v. Meherg, No. 12-1860.   On appeal from a finding that the defendant was an Armed Career Criminal, the Court of Appeals held that the Illinois offense of aggravated stalking qualifies as a crime of violence.  The Illinois crime of stalking is committed when a person “knowingly and without lawful justification . . . follows another person or places the person under surveillance . . . and . . . places that person in reasonable apprehension of immediate or future bodily harm, sexual assault, confinement or restraint.” 720 ILCS § 5/12-7.3(a-3). The Illinois crime of aggravated stalking is committed when a person commits stalking and “confines or restrains the victim.” 720 ILCS § 5/12-7.4(a)(2).  The defendant argued that the offense neither meets the elements test nor the definition in the residual clause.  The court agreed, and the government conceded, that the offense did not meet the elements test.  On the residual clause question, the court looked to the false imprisonment context discussed in United States v. Wallace, 326 F.3d 881 (7^th Cir. 2008), where the court found that a situation where one person restrains another against his or her will presents a serious potential risk of physical injury, whether it be in the initial restraint or the possible resulting confrontation between the assailant and victim if the victim attempts to leave.  In that context, the court rejected the argument that the crime should not qualify because one could conceivably confine a victim without the risk of violent conduct.  The same reasoning applied in this context.  Aggravated stalking is ordinary stalking plus actually confining or restraining the victim.  Therefore, the offense requires not only that the victim fear confinement, but that the victim actually be confined or restrained.  Moreover, the offense has a mens rea or knowing or purposeful conduct, sufficient to require it to be treated in the same way as unlawful restraint and false imprisonment offenses.  NOTE:  This is the first case in quite some time where the court addresses whether a state offense is a crime of violence.  For a complete list of cases addressing whether a particular offense is a crime of violence or not, click HERE.

Government may withhold third point for acceptance of responsibility because of refusal to waive right to appeal in a plea agreement, notwithstanding circuit split on the issue.  United States v. Tristan Davis, No. 12-3552.  The defendant was originally charged with 922 offenses stemming from his giving false addresses when purchasing guns, six of which were later recovered from persons who could not lawfully possess them.  The defendant pled guilty but claimed that the guns were stolen from him.  At sentencing, the defendant only received two levels for acceptance of responsibility because the prosecutor declined to move for the third point because the defendant refused to waive his right to appeal in his plea agreement.  The defendant argued on appeal that the motion from the prosecutor is mandatory whenever the defendant pleads guilty early enough to spare the prosecutor the burden of trial preparation, although he acknowledged contrary precedent on the question from this circuit.  The Court of Appeals noted that two circuits sided with the defendant’s position, and four others sided with the Seventh Circuit.  Because a change in position would not eliminate the split, the court concluded that stare decisis supported the court adhering to its precedent, the conflict now being in the province of the Supreme Court or the Sentencing Commission.  Judge Rovner filed a lengthy and thorough dissent.  NOTE:  Given the circuit split, and Judge Rovern’s well reasoned dissent, if you have this issue, be sure to preserve it in the district court and Court of Appeals and then file a petition for certiorari. 

Defendant’s sentence cannot be enhanced under the distribution guideline for making files available to download by others via sharing software unless there is proof the defendant knew such files were available for download by others.  United States v. Robinson, No. 12-2015.  In possession of child pornography offense, the Court of Appeals held that a defendant’s sentence cannot be enhanced under the distribution guideline for making files available to download by others via sharing software unless there is proof the defendant knew such files were available for download by others.  The Guideline, §2G2.2, provides for a 15-level enhancement for distribution or “posting material . . . on a website for public viewing.”  The guideline does not actually have a knowledge requirement.  Nevertheless, joining a circuit split, the court held that a sentencing judge must find that the defendant either knew, or was reckless in failing to discover, that the files he was downloading could be viewed online by other people.  In the present case, the 61-year old defendant was very limited in his knowledge of computers.  Moreover, the court looked to the specific sharing software, and noted that the default setting was to share files that someone downloaded, although the using may not necessarily be aware of that fact.  Given the uncertainty, the court remanded to the district court for a finding on the defendant’s knowledge.  NOTE:  This is an important victory on the use of file sharing programs.  The government must now present some evidence that a defendant knew his files were available for download to others before receiving the distribution enhancement.  Given how sharing software works, and that the default setting is usually to share, some defendants genuinely do not know their files are viewable by others. 

Marijuana and cocaine offenses properly joined for trial because the two offenses were in the same class of crime—drug dealing.  United States v. Berg, No. 12-2118.  The defendant ran a crossborder smuggling scheme that traded American arms for Canadian cannabis. Later, he supplied several bags of cocaine to a dealer who unwittingly resold them to a government agent. On July 16, 2010, Berg confessed to both sets of crimes. The government took Berg to trial, and a jury convicted him. Berg appealed, arguing that his two sets of crimes were improperly tried in one case and that he was denied the opportunity to call an exculpatory witness.  The Court of Appeals affirmed.  On the first question, the defendant argued that because the jury heard both sets of charges at the same time, it may have inferred he was guilty because he had a propensity to commit crimes and not because of the strength of the evidence.  Because the defendant raised the issue for the first time in his post-trial motion, the court reviewed the issue for plain error.  The court first found that the two charges were properly joined because the marijuana and cocaine offenses were of the “same or similar character.”  On the joinder question, the court looks to categorical, not evidentiary, similarities among offenses.  Here, the fact that both crimes involved drug dealing sufficed to make them of like class.  On the question of whether the trial on the separate charges should nevertheless have been severed to avoid undue prejudice.  On this question, the defendant could not demonstrate prejudice, as the defendant could not establish that the denial of severance actually prejudiced him by preventing the jury from arriving at a reliable judgment as to guilty or innocence.  On the other evidentiary issues raised by the defendant, the court ultimately held that the defendant had waived the issues for purposes of appeal. 

Among other issues, court found that restitution properly ordered for offenses other than those of conviction, where conduct was part of same scheme.  United States v. Westerfield, No. 12-1599.  The defendant was a lawyer working for a title insurance company in Illinois when she facilitated fraudulent real estate transfers in a mortgage fraud scheme. The scheme used stolen identities of homeowners to “sell” houses that were not for sale to fake buyers, and then collect the mortgage proceeds from lenders who were unaware of the fraud. Westerfield facilitated five such real estate transfers, and was later indicted on four counts of wire fraud. She claimed that she had been unaware of the scheme’s fraudulent nature and argued that she had merely performed the typical work of a title agent. A jury disagreed, and convicted her on three of the counts. On appeal, she challenged her conviction for insufficient evidence and argued that the district court improperly admitted a codefendant’s testimony during trial. Additionally, she challenged her sentence based on the district court’s application of the U.S. Sentencing Guidelines and the district court’s restitution calculation.   On the sufficiency question, although no direct evidence was presented against the defendant, the circumstantial evidence was sufficient to support the verdict.  Regarding the codefendant’s testimony, he testified about the general workings of the scheme and the defendant’s role in the scheme.  The court found the evidence to be admissible both from the view as occurrence witness and lay expert witness testimony.  On the sentencing issue, the defendant argued that the court incorrectly calculated the amount of loss by using the value of loss from all five of the transactions she facilitated instead of only three transactions for which she was convicted.  The court rejected this argument, noting that the loss from the other transactions was properly included as relevant conduct.  For purposes of restitution, the court rejected the same argument.  The MVRA allows for restitution to be ordered for offenses of conviction and conduct in the course of the same scheme.  Here, although the district court did not make a specific “scheme” finding, reviewing for plain error, the findings regarding scheme for loss purposes under the guidelines were sufficient.  NOTE:  This case serves as a good reminder that restitution cannot be ordered for any offenses other than the offenses of conviction unless the other conduct is part of the same scheme.  In such cases, the court should explicitly make a finding as to scheme.  Thus, not all “loss” which incorporates relevant conduct in a case can be awarded as restitution with a finding of a “scheme.”

Upon appeal by the government, Court of Appeals affirms the district court’s grant of a motion for judgment of acquittal (!!!) United States v. Jones, No. 12-1497.  Upon appeal by the government of the district court’s entry of judgment of acquittal after a jury trial, the Court of Appeals affirmed.  A jury found the defendant guilty of drug offenses, but the court granted the defendant’s Rule 29 motion.  In doing so, the court concluded that the inferences the jury had to draw in order to reach a guilty verdict fell into the realm of impermissible speculation.  The Court of Appeals agreed.  The government’s case against the defendant was entirely circumstantial.  No witnesses testified that they saw the defendant in possession of any cocaine, and intercepted telephone calls which the government relied upon were not tied directly to actual or constructive possession of any cocaine.  The court then undertook a very fact-intensive analysis of the case, concluding that some of the necessary inferences the government asked the jury to make were too speculative.  NOTE:  This case is very fact specific, as any sufficiency of the evidence case is.  What makes the case remarkable is that the district judge actually granted a Rule 29 motion and the Court of Appeals affirmed it. 

Original finding of 31 kilograms of crack precluded reduction of defendant’s sentence under retroactive amendment to the sentencing guidelines.  United States v. Irons, No. 12-2377.  On appeal from the denial of a petition for a reduced sentence under the crack cocaine amendment, the Court of Appeals held that the district court lacked jurisdiction to consider the defendant’s petition.  The defendant was originally found to have been responsible for 31 kilograms of crack cocaine.  That finding precluded the defendant from obtaining any relief under the amendment, given that the whether it was more than 1.5 kilograms under the original guideline or more than 8.4 kilograms under the amendment, the defendant’s Base Offense Level was still 38.  NOTE:  It is hard to understand why this unremarkable opinion was published, other than the fact that it was authored by a district judge sitting by designation. 

Lengthening a sentence because rehabilitation is unlikely does not run afoul of Tapia.  United States v. Annoreno, No. 11-2783.  In prosecution for distribution and possession of child pornography offenses, the court of appeals affirmed all aspects of the defendant’s sentence.  For purposes of sentencing, the defendant offered evidence of diminished capacity in mitigation.  However, the defendant argued that the court impermissibly used that same evidence as an aggravating factor.  Although the court acknowledged the mitigating aspects of this evidence, it also noted that these same traits might make the defendant less amendable to treatment and rehabilitation, which would leave him a continuing risk to children.  The sentence court was entitled to consider its options and decide that treatment was unlikely given the defendant’s mental capacity and personal characteristics.  The defendant also argued that the court impermissibly lengthened his sentence so he could receive rehabilitative treatment, in violation of the Supreme Court’s decision in Tapia.  The court found the defendant misinterpreted the court’s reasoning, noting that the court didn’t lengthen the defendant’s sentence so he could receive treatment, but instead lengthened his sentence to incapacitate him given the likelihood that treatment would be ineffective.  This was a legitimate basis to lengthen the sentence.  Finally, as usual, the court rejected all of the defendant’s arguments that his sentence was substantively unreasonable. 

Witness testimony about defendant’s incarceration was not improper, where defense counsel’s questions on cross-examination invited the response.  United States v. Zitt, No. 12-1277.  In prosecution for conspiracy to distributed heroin, the court affirmed the district court’s refusal to grant a mistrial.  During the government’s case, one of its witnesses on cross-examination testified that he was in prison at the same time as the defendant.  The defense moved for a mistrial, but the court denied it and gave an instruction to ignore the answer as irrelevant.  The Court of Appeals found that the answer was not improper.  Examining another party’s witness entails risk in deciding what to ask and how to craft questions, and the witness here gave an answer that surprised everyone.  Specifically, a logical answer to the question of whether the defendant had known the witness had gone to jail was “yes,” because the two were in prison at the same time.  The answer was therefore responsive, fair, and proper in light of the line of questioning. 

Enhancement for governmental victim of offense of making false threats of an explosive device permissible where the defendant intended his conduct to elicit a response by law enforcement agencies who would then become victims of the false threat.  United States v. Conaway, No. 11-3246.  Conaway made a series of threatening phone calls to an imam and numerous federal and state officials. These calls culminated in a standoff at Conaway’s home that evening that drew a response from over a dozen governmental agencies and resulted in the evacuation of the entire street. Thankfully Conaway’s threats to, among other things, blow up the entire block turned out to be bogus—an ominous-looking device strapped to his chest held squares of putty, not explosive C-4. He was sentenced to two concurrent sentences of 60 months’ imprisonment after pleading guilty to making false threats to detonate an explosive device, see 18 U.S.C. § 1038(a)(1), and influencing a federal official by threat, see 18 U.S.C. § 115(a)(1)(B). He argued on appeal that his 60-month sentences were both procedurally and substantively unreasonable in light of his crime and what he views as mitigating factors that the district court failed to adequately consider. The court rejected all these arguments.  The defendant first challenged a guideline enhancement of six levels for the offense being motivated by the fact that the victim was a government officer or employee.  Although the defendant argued that his threats were directed at “anyone and anybody,” the court concluded that the defendant’s plan was specifically directed at law enforcement who he knew would respond to his actions.  Next, the defendant argued that his sentence 3-months above the range was substantively reasonable.  The court found that the sentence was reasonable and adequately explained.   

The Supreme Court has issued no one opinion in criminal cases since the last update and no new grants of certiorari.  For a complete list of criminal issues decided and pending in the Supreme Court this Term, click HERE.

The Seventh Circuit issued 8 precedential opinions in criminal cases since the last update, as summarized below.

Court cannot impose post-release conditions without entering an order of supervised release.  United States v. Gutierrez-Ceja, No. 12-1388.  In an illegal reentry case, the Court of Appeals found an error identified in counsel’s Anders brief to be plain error, instead of harmless error, but rather than order that the issue be briefed, the court corrected the error itself.  At sentencing, the court stated that it was not imposing a term of supervised release because it was confident the defendant would be deported upon completion of his sentence.  However, the written judgment stated that if the defendant was not deported, then the defendant had to abide by certain conditions typical for supervised release.  Defense counsel noted, and the court agreed, that the court could not impose such conditions unless it imposed supervised release.  The only authority for imposing such terms is the supervised release statute.  Counsel’s assertion, however, that the error was harmless was incorrect.  The error was in fact plain.  Rather than require full briefing as is typical in a case where an issue is identified by the court upon review of an Anders brief, the court elected to ”excise” the post-release terms from the judgment. Here, the error was so patent that there was no response that the government could make to it, and the Anders brief, while wobbly with respect to the error of imposing post-release conditions in the absence of an order of supervised release, adequately demonstrates the absence of any possible ground of appeal other than the post-release conditions.  In these circumstances, the court could achieve judicial economy with no sacrifice of anyone’s legal rights by modifying the judgment of the district court to eliminate the post-release terms, and it did so.

Defendant not eligible for reduced sentence under retroactive crack cocaine amendment because he agreed to a specific sentence not linked to the Guidelines.  United States v. Scott, No. 12-2555.  Upon appeal of the denial of a 3582(c)(2) petition seeking a reduced sentence under the retroactive amendment to the sentencing guidelines, the Court of Appeals affirmed, holding that the defendant’s 11(c)(1)(C) agreement precluded relief.  The agreement for a specific sentence specifically noted that they made not calculation of the sentencing guidelines, but the agreement did stipulate that the defendant’s Base Offense Level was 34.  The district court, however, in denying the petition, did not reference the agreement for a specific sentence, but instead, the court simply checked a box on a form which reads:  “The defendant is eligible for a reduction under this amendment, but the Court has determined that such a reduction is not appropriate because of the nature and seriousness of the danger to any person or the community that may be posed by a reduction in sentence. (Application Note 1(B) of U.S.S.G. § 1B1.10).”  The defendant argued that the district court did not adequately explain its reasons for denying his motion, making meaningful appellate review impossible.  The court noted that a district court should not use a form for the entirety of the explanation of its sentence; a form might be an acceptable starting point, but an explanation of the reason why a particular factor applies, rather than a flat statement that it does, will normally be necessary both to guide the district court’s choices and to provide a basis for review.  Moreover, here, the use of the form injected error into the court’s reasoning, because the defendant was in fact not eligible for a reduced sentence as a matter of law.  Indeed, pursuant to the Supreme Court’s decision in Freeman, because the defendant’s agreement to a specific sentence was not linked to the Guidelines, he was not eligible for a reduction at all.

Defendant improperly sentenced under pre-FSA statute where his sentencing hearing occurred after the Act became effective.  United States v. Lomax, No. 11-2468.  On appeal from a conviction and sentence for a crack cocaine offense, the defendant argued that he should have been sentenced under the FSA, given that his sentencing hearing occurred after that Act’s effective date.  The court of appeals agreed that pursuant to Dorsey, the Act should have been used at sentencing.  Although this conclusion was rather straightforward, the court did note a gap in the record which complicated the case.  Specifically, the defendant pled guilty after the government filed an 851 enhancement, which would have increased his statutory maximum penalties.  With the enhancement, both pre- and post-FSA, the defendant would be subject to a maximum of life imprisonment.  Without the enhancement, however, his maximum pre-FSA was life, but his maximum post-FSA was 40 years.  This difference is significant because, given the defendant’s career offender status, his post-FSA guideline range would only go down if the 851 enhancement did not apply. Strangely, notwithstanding the 851 notice, the parties at sentencing made no reference to the enhancement, despite nothing in the record disclosing that the 851 notice was dismissed.  Given the incomplete record in the case, the court assumed for purposes of appeal that the 851 enhancement did not apply, that his new statutory cap was 40 years, and that his career offender guideline range was therefore lowered by the FSA.  The court therefore remanded the case for resentencing, with directions to the court to first resolve the 851 issue. 

An inoperable gun met the statutory definition set for at 18 U.S.C. § 921(a)(3)(A), (B) because it was “designed to be a gun, never redesigned to be something else, and not so dilapidated as to be beyond repair.”  United States v. Dotson, No. 12-2945.  In prosecution for being a felon in possession of a weapon, the Court of Appeals rejected the defendant’s argument that the inoperable pistol he possessed was not “any weapon which will or is designed to or may readily be converted to expel a projectile by the action of an explosive,” or the “frame or receiver of any such weapon,” as defined at 18 U.S.C. § 921(a)(3)(A), (B).  The pistol was a Hi-Point .380 caliber semi-automatic. It was designed to be a gun, and nothing else. But according to the pretrial report of an expert at the Justice Department’s Bureau of Alcohol, Tobacco, Firearms and Explosives, at the time when the defendant possessed the gun it was inoperable because of “significant damage, missing/broken parts, and extensive corrosion.” The expert testified similarly at trial—testified that the gun was “damage[d]” and had “corroded, missing and broken components which make it inoperable.”  There was no dispute that the gun could not “expel a projectile” and it could not be “readily . . . converted” to do so in any reasonable amount of time.  Thus, the only question was whether the gun “is designed” to expel a projectile by means of an explosive.  The defendant argued that the damage to the gun was such that it was no longer a weapon designed to expel a projectile.  The damage had changed the characteristics of the gun and therefor its design.  The government, however, argued that a gun is always a gun, regardless of any latter damage which may occur to it.  The court rejected both extremes and went through a series of hypotheticals demonstrating why both extremes were untenable.  Instead, the court looked to the gun used in this case, end held that it met the statutory definition because it was “designed to be a gun, never redesigned to be something else, and not so dilapidated as to be beyond repair.”  Thus, it met the statutory definition.

Presence of an alternate juror during jury deliberations did not constituted reversible error because no evidence suggested the alternate deliberated with the other jurors.  United States v. Dill, No. 12-1733.  On appeal from a various firearm offenses, the Court of Appeals held that the presence of an alternate juror during jury deliberations did not constituted reversible error because no evidence suggested the alternate deliberated with the other jurors.  The court first noted that Federal Rule of Criminal Procedure 24(c)(3) explicitly prohibits alternate jurors from being present during deliberation.  Therefore, under the plain error standard, the only question was whether the error affected the defendant’s substantial rights, an issue on which the defendant bore the burden of persuasion.  Relying on the Supreme Court’s analysis in Olano, the court noted that the defendant has not alleged—nor pointed to anything on the record indicating—that the alternate juror actually participated in the jury’s deliberations in any way.  Moreover, the district court explicitly instructed the alternate not to participate in deliberations and so without any indication that she somehow participated either “verbally or through body language,” the court had no basis to infer that her presence was prejudicial to the defendant.

Evidence of drug possession subsequent to time charged in a drug prosecution was not improper 404(b) evidence.  United States v. Gomez, No. 12-1104.  In prosecution for drug offenses, the Court of Appeals rejected the defendant’s arguments that the district court erred in admitting evidence of his possession of cocaine a few weeks after the charged crimes, and that the district judge didn’t specify his perjurious statements when increasing his sentencing range for obstruction of justice. On the first issue, the defendant argued that admission of evidence of his subsequent possession of a user amount of cocaine as 404(b) evidence was an abuse of discretion. The court then engaged in an unusually long analysis of all the 404(b) factors, very specific to the facts of the particular case.  The court ultimately found the evidence was properly admitted. 

Incorrect date in the indictment stemming from a clerical error was not plain error and restitution was properly imposed.  United States v. Scheuneman, No. 11-1554.  On appeal from convictions for tax evasion and interference with the IRS laws, the court of appeals rejected the defendant’s arguments that 1) a clerical error in the indictment’s description of the relevant date for two of his tax evasion counts rendered those counts legally insufficient; 2) the government constructively amended the indictment by introducing proof regarding dates other than those listed in the indictment; and 3) the court improperly ordered restitution for losses unrelated to his tax evasion offenses.  On the first issue, reviewing for plain error, the court noted that the indictment on two counts stated the relevant date for the beginning of the conduct as one year earlier than it should have.  The court first found that despite the confusing dates, the counts nevertheless stated all the elements of tax evasion.  On the second issue, the court noted that the evidence presented at trial was entirely consistent with the dates set forth in the indictment.  Although the indictment listed the wrong initial starting date for the conduct, the dates set forth in the indictment still encompassed the period for which the government presented evidence.  On the restitution issue, again reviewing for plain error, noted that the restitution order was not for relevant conduct on the tax evasion counts as the defendant argued, but instead was directly related to his conviction for interfering with the IRS laws.  As such, restitution was proper.

Multiple issues rejected in the appeal of John Burge, former Chicago policeman who tortured and abused suspects.  United States v. Burge, No. 11-1277.  This appeal stemmed from convictions for perjury and obstruction of justice stemming from the infamous abuse and torture of suspects by former Chicago Police Commander Jon Burge.  Burge was charged with lying in connection with his responses to interrogatories served on him during the course of some civil actions alleging damages based upon his misconduct.  The defendant first argued that the charges of obstruction of justice should have been dismissed because his false response to interrogatories did not occur “before” a judge as required by the statute.  The court rejected this argument, noting that the obstructive conduct need not physically occur in the presence of a judge, but rather occur in a proceeding that was pending “before a judge.”  Secondly, the court rejected the defendant’s argument that his culpability was diminished because his responses were given in the context of a civil interrogatory.  The court stated that perjury and obstruction of justice are offenses against the integrity of the judicial system—not solely injuries to opposing parties in a civil suit.  Next, the court rejected the defendant’s claim that his false statements were not material, noting that his denial of torturing suspects was a core component of the civil suit.  The court also rejected the defendant’s argument that a difference in language between the indictment and the jury instruction concerning materiality was a constructive amendment of the indictment.  Instead, the court found the difference to be only a variance because the instruction did not change the elements of the crime, nor did it affect the evidence the jury would have relied upon to hold the defendant liable for the crimes charged.  Next, after rejecting the defendant’s hearsay argument, the court finally held that the court did not err by referencing a victim impact letter at sentencing. 

The Supreme Court has issued no one opinion in criminal cases since the last update and no new grants of certiorari.  For a complete list of criminal issues decided and pending in the Supreme Court this Term, click HERE.

The criminal case decided by the Supreme Court this week was Florida v. Jardines, and the Court’s decision is summarized by Sentencing Resource Counsel Laura Mate as follows:

In a 5-4 decision in Florida v. Jardines, No. 11-564, with Justice Scalia writing for the majority, the Supreme Court held:  "The government's use of trained police dogs to investigate the home and its immediate surroundings is a 'search' within the meaning of the Fourth Amendment." 

In this case, a joint surveillance team (two detectives, one a trained canine handler, and Franky, the dog) approached Jardines' home.  The dog explored the porch, and the handler informed the other detective that there had been a positive alert for narcotics.  On that basis, the detective applied for a warrant, searched the home, found marijuana plants, and Jardines was charged with trafficking in cannabis. 

The majority relied on a "property-rights baseline" that "keeps easy cases easy.  That the officers learned what they learned only by physically intruding on Jardines' property to gather evidence is enough to establish that a search occurred."  In a footnote, the majority makes clear, that it is "not the dog that is the problem, but the behavior that here involved the use of the dog.  We think a typical person would find it 'a cause for great alarm'... to find a stranger snooping about his front porch with or without a dog." 

Justice Kagan filed a concurring opinion in which Justice Ginsburg and Justice Sotomayor joined, to emphasize that while the majority "treats this case under a property rubric... I could just as happily have decided it by looking to Jardines' privacy interests."   As Justice Kagan notes, [i]t is not surprising that in a case involving a search of a home, property concepts and privacy concepts should so align."

In his dissent, Justice Alito is joined by Chief Justice Roberts, and Justices Kennedy and Breyer.

The decision can be found here, and the SCOTUSblog summary of the case can be found here. 

The Seventh Circuit issued 2 precedential opinions in criminal cases since the last update, as summarized below.

Constitution does not compel disclosure to defendant of the probation officer’s confidential sentencing recommendation, but the court offered its view that “our federal sentencing procedures might be better served by allowing the parties to evaluate any analysis that might form the basis of a judicial determination.”  United States v. Peterson, No. 12-2484.  The defendant argued on appeal that the district court’s reliance on the probation officer’s confidential sentencing recommendation violated his Fifth and Sixth Amendment rights because he had no opportunity to respond to the analysis contained therein.  The Court of Appeals rejected this argument.  As an initial matter, the court held that the defendant had forfeited the issue in the district court by failing to object once the court’s reliance on the confidential recommendation became known to him at sentencing.  Specifically, the defendant did not learn of the analysis contained in the recommendation until the district court’s explanation of the sentence.  The court noted that the defendant could have objected when, before concluding the sentencing hearing and issuing judgment, the district court asked the parties whether there was anything further for the court to address.  Secondly, the defendant could have raised an objection in a post-sentencing motion.  On the merits, the court noted that all of the underlying factual information supporting the probation officer’s rationale is contained in the PSR available to both parties.  By ensuring that the defendant received and reviewed all of the facts referenced in the probation officer’s sentencing recommendation, the district court gave the defendant all the process he was due.  Considering whether disclosing the recommendation is desirable, if not constitutionally compelled, the court noted that many districts require and the ABA recommends disclosure of the recommendation.  In light of legitimate concerns that probation officers can sometime appear to be surrogate prosecutors, the court offered its view that “our federal sentencing procedures might be better served by allowing the parties to evaluate any analysis that might form the basis of a judicial determination.”  The court went on to suggest how such a procedure might be implemented:  “We do not suggest that district courts should necessarily release confidential sentencing recommendations in all cases and under all circumstances. But the federal rules allow courts the opportunity to make these determinations on a case-by-case basis. See Fed. R. Crim. P. 32(e)(3) (“By local rule or by order in a case, the court may direct the probation officer not to disclose to anyone other than the court the officer’s recommendation on the sentence.” (emphasis added)). If a district court is concerned about a probation officer’s ability to produce a forthright assessment because of a potential supervisory relationship or a case-specific factor, the court could request that the probation officer submit the sentencing recommendation to the court confidentially. An order from the district court requiring confidentiality would produce the added benefit of informing the defendant that a confidential recommendation exists, something that could remain a mystery to defendants when the court does not reference the recommendation during sentencing. If, on the other hand, no such concerns exist because of the structure of the probation office or because of the nature of the case, the district court could direct that the parties receive all portions of the PSR, including the probation officer’s sentencing recommendation. This practice could allow the defense an opportunity to see and comment on the recommendation and independently confirm that all facts forming the basis for the recommendation are contained elsewhere in the report.  NOTE:  This is an important case in many respects.  First, although the court unfortunately rejected the constitutional challenge to nondisclosure of the confidential recommendation, it certainly strongly recommended that as a prudential matter the recommendations be disclosed.  Thus, this may at least provide the opportunity for a request that the courts in this district revisit their rules on this issue.  Secondly, this case continues a disturbing trend of blurring the lines of when defense counsel is required to object to things that happen when a judge is pronouncing sentence.  The Federal Rules specifically provide that parties are not required to take “exception” to a judge’s ruling.  However, in an increasing number of cases, the government is arguing and the court is accepting an argument that defense counsel is required to speak up if a judge makes an error while pronouncing his or her sentence.  Accordingly, if you think a judge makes a mistake while pronouncing sentence, you should probably speak up at the hearing or risk plain error review on appeal. 

Affair between investigating agent and defendant’s wife did not constitute outrageous government conduct constituting a denial of due process; eight year delay by court in ruling on motion for new trial did not violate the defendant’s Speedy Trial rights.  United States v. Westmoreland, No. 10-3961.  The defendant was originally convicted in two separate trials of a controlled substance offense (trial 1) and five additional counts stemming from the murder of the wife of his partner in drug dealing (trial 2).  After conviction and while his appeal was pending, the defendant filed a motion for a new trial based upon outrageous government conduct and newly discovered evidence.  The motion was based upon the fact that after the defendant’s conviction on the drug charge but before trial on the murder-related charges, the government learned that one of the lead investigating agents engaged in a sexual affair with the defendant’s wife.  Upon learning of the affair, the government elected not to seek the death penalty and did not call the agent as a witness, although it did call the defendant’s wife.  She testified about the affair at trial.  The defendant argued that the affair was so outrageous that it infected the entire investigation and prosecution, denying him due process of law.  The Seventh Circuit noted that such a defense has generally been disallowed in this circuit.  Moreover, even if the court were inclined to re-examine its precedents in this area, this case would not support the defense.  Where such a defense has been recognized, the defense has come into play only where the government’s involvement created a crime or criminal enterprise that did not exist before and where the government had to coerce the defendant to commit the crime by some unreasonable means.  Here, the defendant’s criminal conduct occurred long before the affair.  Thus, even if the affair infected the investigation and prosecution, it did not play any role in the crime itself, thereby precluding the defense.  On the issue of newly discovered evidence, the court noted that the defendant knew of the affair before trial and, in fact, believed that it had begun earlier than the government and his wife said it did.  Thus, the existence of the affair cannot be said to be “newly discovered evidence.”  On a separate issue, the defendant’s motion for a new trial sat before the district court for 8 years without any action.  Based upon this delay, the defendant argued that his right to a speedy trial was violated.  The court first noted that it has not decided whether the right to a speedy trial attaches to a post-trial motion for a new trial.  It also noted that it need not decide the issue in this case, for even if such a right did attach, the defendant could not show a right was violated.  Critically, the defendant could not show that he was prejudiced by the delay.  The defendant was serving an unchallenged 240-month sentence on the drug charge during the 8 years his motion was pending.  Thus, while he waited for a ruling on his motion for a new trial, he was not incarcerated any longer than he would have been otherwise.

The Supreme Court has issued no new opinions in criminal cases since the last update and one new grant of certiorari.  For a complete list of criminal issues decided and pending in the Supreme Court this Term, click HERE.

The new grant of certiorari was in Kaley v. United States, No 12-464.  The issue for review is:

“Whether, when a post-indictment, ex parte restraining order freezes assets needed by a criminal defendant to retain counsel of choice, the Fifth and Sixth Amendments require a pre-trial, adversarial hearing at which the defendant may challenge the evidentiary support and legal theory of the underlying charges.”

The Seventh Circuit issued 2 opinions in criminal cases since the last update, as summarized below.

Conviction for possession of a firearm after a conviction for domestic violence does not require proof that the defendant knew of his status as a prohibited person.  United States v. Stein, No. 12-2182.  On appeal after conviction for possession of a firearm following a misdemeanor conviction for a crime of domestic violence, the defendant argued that he should have been allowed to introduce evidence at trial support a proposed defense that his lawyer in the domestic-violence prosecution had led him to believe that the misdemeanor conviction would not disqualify him from possessing firearms.  The Court of Appeals rejected this argument based upon two prior precedents in the circuit rejecting such evidence as irrelevant.  Specifically, both United States v. Lee Wilson, 437 F.3d 616, 620 (7^th Cir. 2006), and United States v. Carlton Wilson, 159 F.3d 280, 288-89 (7^th Cir. 1998), both suggest that the mens rea element of the offense is satisfied by knowing possession of the gun and does not require proof that the defendant was aware of his status as a prohibited person.  The court reaffirmed the holding in these cases,  noting that unless the text of the statute dictates a different result, the term “knowingly” merely requires proof of knowledge of the facts that constitute the offense.

Sentence vacated where court rejected arguments for variance without explanation.  United States v. Pietkiewicz, No. 11-3296.  On appeal after a mail fraud conviction, the defendant argued that the district court erred by failing to explain why it rejected his arguments for a variance.  The defendant made a number of arguments for a variance from the guidelines, all of which the district court denied without comment.  Stating the now familiar principles on this question, the court noted that a court must state in open court the reasons for its imposition of a particular sentence and the amount of explanation required from the court varies with the circumstances.  Although a court is not required to conduct a comprehensive discussion of every factor affecting the sentencing judge’s decision, it must provide some explanation and “address nonfrivolous sentencing arguments.”  Given the district court’s complete silence, a remand was necessary to give the district court an opportunity to explain the reasoning behind its decision.  NOTE:  This is a particularly fertile area for appeal, with several good precedents remanding cases because of non-existent or inadequate explanations for rejection of non-frivolous arguments for a variance.  When reviewing a sentencing transcript or Order, make sure the district judge specifically addresses every non-frivolous argument made in support of a variance.

The Supreme Court has issued no new opinions in criminal cases since the last update and no new grants of certiorari.  For a complete list of criminal issues decided and pending in the Supreme Court this Term, click HERE.

The Seventh Circuit issued 2 opinions in criminal cases since the last update, as summarized below.

An adult threw two punches aimed at a police officer’s head was subject to a 6-level enhancement for assaulting a police officer in a manner that created a substantial risk of serious bodily injury.  United States v. Alexander, No. 12-1084.  In a drug case, the Court of Appeals affirmed a 6-level enhancement for assaulting a police officer in a manner that created a substantial risk of serious bodily injury.  U.S.S.G. § 3A1.2(c).  Alexander boarded an Amtrak train in Chicago carrying a large amount of cocaine. When he disembarked in Springfield, police officers were waiting for him. The officers ordered Alexander to place his hands on a brick wall and proceeded to search him for weapons. After initially complying and submitting to a pat-down, Alexander turned and swung a right hook at the searching officer, Lieutenant Steil, striking him on the left side of his head behind the ear. Alexander followed with a left hook, but Lt. Steil ducked the blow and wrestled Alexander to the ground. Alexander continued struggling, got back on his feet, and began running. He did not get far before a police dog caught up and subdued him. He then surrendered to the police.  Alexander argued that the enhancement was not warranted, arguing that his punches had not seriously threatened harm to Lt. Steil. At Alexander’s sentencing hearing Lt. Steil testified that he had suffered only minor injuries.  The Sentencing Guidelines define “serious bodily injury” as “injury involving extreme physical pain or the protracted impairment of a function of a bodily member, organ, or mental faculty; or requiring medical intervention such as surgery, hospitalization, or physical rehabilitation.” U.S.S.G. § 1B1.1 cmt. n.1(L).  The Court of Appeals noted that appellate judges are poorly suited to second-guess a sentencing court’s evaluation of the “myriad factors” that establish the level of injury a victim suffered or risked suffering.  The court concluded that even one blow to the head, and even by an unarmed person, can pose a substantial risk of serious injury within the meaning of the Guidelines. The court noted that it was not holding or even suggesting that every swing of a fist qualifies for the upward adjustment under § 3A1.2(c). However, applying the Guideline standard to the specific circumstances of a case is the responsibility of the district judge. Thus, the court held that the district court did not clearly err by applying the adjustment in this case, in which an adult threw two punches aimed at a police officer’s head.  NOTE:  Although the court tried to limit its holding to the facts of this case and rely on the deferential standard of review, this case sets a very low bar for what constitutes “serious bodily injury” in the Guidelines. 

United States v. Banas, No. 12-1499.  Anthony Banas bilked investors out of more than $70,000,000 and lined his own pockets with the health care savings of people who trusted him. He also showed extraordinary contrition—he admitted his guilt, accepted responsibility for his actions, and he worked hard to secure some degree of restitution.  The district court sentenced him to 160 months imprisonment, a sentence below the Guideline range.  On appeal, the defendant argued that the sentence was both procedurally and substantively unreasonable.  Procedurally, the defendant argued that the court failed to consider two of his principal arguments in mitigation, to wit: that he was manipulated by another individual and that he fully cooperated with the government.  The court rejected this argument, noting that the court in fact referenced both of these arguments and gave them meaningful consideration.  On the substantive reasonableness argument, the defendant argued that the sentence was unreasonable because the court failed to account for various mitigating factors and the sentence was disproportionately long compared to his co-defendant’s sentence.  The court noted that the sentence imposed was below the Guideline range, and the court considered all the factors in mitigation.  Regarding his argument related to his co-defendant’s sentence, the court noted that the defendant in fact received a lower sentence than his codefendant, making the argument borderline frivolous.  NOTE:  Probably not a good idea in the future based on the language in this case to argue your client’s sentence is disproportionate to a codefendant’s sentence when your client’s sentence is actually lower than the co-defendant’s sentence. 

The Supreme Court has issued no new opinions in criminal cases since the last update and no new grants of certiorari.  For a complete list of criminal issues decided and pending in the Supreme Court this Term, click HERE.

The Seventh Circuit issued  4 opinions in criminal cases since the last update, as summarized below.

Any errors in out-of-court identification procedures were harmless; cross-examination was not unconstitutionally limited; and not impermissibly to apply higher of two applicable mandatory minimum sentences for the same offense.  United States v. Sanders, No. 11-3298.  In January 2008, Lamar E. Sanders and an accomplice abducted Timicka Nobles’s daughter, R.E. The reason: to induce Nobles to rob her own mother. Nobles attempted to comply—she left a bag of cash for Sanders’s accomplice to pick up—but law enforcement authorities were already apprised of the plot. They quickly arrested Sanders’s accomplice, and Sanders turned himself in shortly thereafter. Fortunately, no one was injured, and police recovered the money. After a five-day trial, a jury found Sanders guilty of kidnapping and extortion. He now appealed his conviction and sentence. First, Sanders argued that the district court denied him due process by admitting Nobles’s three identifications of him. Second, Sanders claimed that the district court ran afoul of the Confrontation Clause, or, alternatively, abused its discretion, by limiting his cross-examination of Nobles. Finally, Sanders contended that the district court applied the incorrect mandatory minimum sentence. Finding no errors, the court affirmed.  Regarding the identification argument, the victim was first shown some photographs taken at a birthday party recovered from the defendant’s car where he was depicted with various other people.  The second identification was a few hours later in a formal photographic array.  A final, third identification was made a trial.  The court noted that if either of the first two procedures was unnecessarily suggestive, then the in-court identification must demonstrate an independent basis of reliability to be admissible.  Regarding the vacation photos, the victim was at best presented with the choice between the defendant and one other person, making the procedure most similar to a “show up” and the court assumed it was suggestive.  However, even assuming that to be the case, he could not prove the procedure was also unnecessary.  At the time the identification was made, police needed to act quickly to apprehend an armed felon on the loose; using the photo was the best way to get a quick ID on the suspect.  Moreover, any error was harmless, given that the victim’s daughter independently identified the defendant through a proper photographic array.  The defendant challenged the second photo array identification, arguing that his was the only photo the appeared in both the first and second procedure.  Rather than decide the issue directly, the court used the same harmless error analysis to reject this challenge as it used on the first challenge.  Moving to the cross-examination question, the defendant challenged the court’s decision to limit his cross examination of the victim concerning her criminal history to support his theory that the victim was actually implicated in the crime.  The court, however, noted that the defendant was allowed to question the victim and pursue his theory of defense, but just not allowed to delve into her criminal history.  Thus, because the defendant was given the chance to cross and establish his theory, the limitation in this one area did not implicate the Confrontation Clause’s core concern.  Finally, the defendant argued that he should have received a 20-year mandatory minimum pursuant to 18 U.S.C. § 1201(a) instead of a 25-year minimum required by 3559(f)(2).  The two mandatory minimums in question both apply to the defendant’s offense and, according to the defendant, to make sense of the two separate penalties, the higher penalty should only apply where “actual violence” occurred with a kidnapping.  The court rejected this approach, noting that the two penalty provisions were not inconsistent because 1201(g) provides for a penalty of “not less than” 20 years and the 25 year penalty in 3559(f)(2) is “not less than” 20 years.   

Skilling honest services error did not have substantial effect on jury’s verdict because the honest services error was premised on money/property fraud. Sorich v. United States, No. 11-2839.  Upon consideration of the denial of a 2255 petition, the Court of Appeals held that any honest-services fraud Skilling error did not have a substantial effect on the jury’s verdict.  Robert Sorich, Timothy McCarthy, and Patrick Slattery were convicted of mail fraud for their roles in a scheme to award City of Chicago jobs and promotions to favored applicants. Consistent with the circuit’s case law at the time, the jury was instructed that the defendants were guilty of mail fraud if they deprived the City of money or property, or if they deprived the City of its right to honest services. After the court affirmed the defendants’ convictions, the Supreme Court ruled that the honest-services fraud statute is limited only to schemes involving bribes or kickbacks. Skilling v. United States, 130 S. Ct. 2896 (2010).  In light of Skilling, the petitioners maintained they were entitled to collateral relief under 28 U.S.C. § 2255.  The court of appeals held, however, that although the jury’s receipt of an honest-services theory was error because the scheme in this case did not involve bribes or kickbacks, the error was harmless. The trial reflected a single scheme to take City jobs and promotions through false representations, and these jobs and promotions were the City’s money or property. Any honest-services violation  had to be premised on the money/property fraud, and the Skilling error therefore did not have substantial effect on the jury’s verdict.

Testimony of lab supervisor about procedures used by a lab tech and his conclusions violated Confrontation Clause but was harmless beyond a reasonable doubt.  United States v. Turner, No. 08-3109.  On remand from the United States Supreme Court for reconsideration in light of Williams v. Illinois, the court considered whether the expert testimony of a supervisor who did not perform any tests, but formed an opinion as to whether a substance contained cocaine base using the underlying data, violated the Confrontation Clause.  The supervisor not only reached his own conclusions based on the underlying data, but also testified that the tech who performed the analysis followed proper procedures and reached the same conclusion as the supervisor.  Noting that the Williams decision was a plurality, the court attempted to discern what the exact holding of the case is.  First, the court noted that to the extent the supervisor testified about anything that the actual lab tech did or concluded in testing the substances in question, his testimony may have violated the Confrontation Clause.  The court, however concluded that any Confrontation Clause error that occurred during Block’s (the supervisor) testimony was harmless beyond a reasonable doubt.  Only two aspects of Block’s testimony potentially present a Confrontation Clause problem: Block’s testimony that Hanson followed standard procedures in testing the substances that Turner distributed to the undercover officer, and his testimony that he reached the same conclusion about the nature of the substances that Hanson (the tech) did. In both respects, Block necessarily was relying on out-of-court statements contained in Hanson’s notes and report. These portions of Block’s testimony strengthened the government’s case; and, conversely, their exclusion would have diminished the quantity and quality of evidence showing that the substances Turner distributed comprised cocaine base in the form of crack cocaine. However, apart from Block’s testimony, there was other evidence indicating that the substances were crack cocaine, and Turner himself did not contest that they were, in fact, crack cocaine.  The court was therefore confident that any error did not affect the outcome of the trial.

 Statement “Can you call my attorney, Her Schultz” was an unambiguous invocation of counsel sufficient to require the cessation of police questioning.  United States v. Hunter, No. 12-1751.  On interlocutory appeal by the government from an order suppressing statements made by the defendant, the Court of Appeals affirmed, holding that officers continued to interrogate the defendant after he had unambiguously invoked his right to counsel.  While in the hospital for a gunshot wound he received from the police and handcuffed to a hospital gurney, the defendant said he was willing to speak to the officers but needed a minute to think.  He then asked with what he was charged, and then asked the officer to make some calls for him, including making the following question, “Can you call my attorney, Herb Schultz?”  When the officer asked what he wanted him to tell the people he was calling, he said, “Tell them that I’ve been shot.”  The officer never called the attorney and, shortly thereafter, two other officers arrived and continued to interrogate the defendant.  Although the defendant did not repeat his request to have the new investigators call his attorney, he did ask them if they knew his attorney, Herb Schultz.  The officers ignored the question and continued to question the defendant.  Reviewing the caselaw on various invocations of counsel, the court concluded that the defendant’s request that officers call his attorney was an unambiguous invocation of counsel.  Not only the statement itself, but the prior context as well, all supported this conclusion.  NOTE:  This case contains a lengthy and thorough review of circuit and Supreme Court precedent’s on what constitutes and unambiguous invocation of counsel and should be one of the first cases you read if you have this issue.

Supreme Court Grants of Certiorari this week

The Supreme Court has issued no new opinions in criminal cases thus far this week, and two new grants of certiorari as noted below. For a complete list of criminal issues decided and pending in the Supreme Court this Term, click HERE.

Burt v. Titlow, No. 12-414

(1) Whether the Sixth Circuit failed to give appropriate deference to a Michigan state court under Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) in holding that defense counsel was constitutionally ineffective for allowing respondent to maintain his claim of innocence; (2) whether a convicted defendant’s subjective testimony that he would have accepted a plea but for ineffective assistance, is, standing alone, sufficient to demonstrate a reasonable probability that defendant would have accepted the plea; and (3) whether Lafler v. Cooper always requires a state trial court to resentence a defendant who shows a reasonable probability that he would have accepted a plea offer but for ineffective assistance, and to do so in such a way as to “remedy” the violation of the defendant’s constitutional right.

Kansas v. Cheever, No. 12-609

(1) Whether, when a criminal defendant who affirmatively introduces expert testimony that he lacked the requisite mental state to commit capital murder of a law enforcement officer due to the alleged temporary and long-term effects of the defendant’s methamphetamine use, the state violates the defendant’s Fifth Amendment privilege against self-incrimination by rebutting the defendant’s mental state defense with evidence from a court-ordered mental evaluation of the defendant; and (2) whether, when a criminal defendant testifies in his own defense, the state violates the Fifth Amendment by impeaching such testimony with evidence from a court-ordered mental evaluation of the defendant.

Seventh Circuit Criminal Opinions this Week

The Seventh Circuit issued two opinions in criminal cases thus far this week, as summarized below.

COLLATERAL ATTACKS

The proper vehicle for seeking to compel the government to file a Rule 35(b) motion is a 2255 petition; a petition or motion based on a claim that did not become ripe any earlier than until after the adjudication of the petitioner’s first petition or motion is not “second or successive” within the meaning of Sections 2244 and 2255(h). United States v. Obeid, No. 12-1254. In exchange for his cooperation with the government, the defendant received a sentence sentence that is at least 45% shorter than it would have been had he been sentenced within the range recommended Guidelines. On appeal, however, he argued that that he is entitled to an additional 24-month reduction, based not on his own cooperation, but on that of his identical twin brother. The district court concluded that Obeid was not so entitled, and the Court of Appeals agreed, though for a different reason. The defendant and his brother entered into cooperation agreements with the government, where in the government essentially agreed to treat the two brothers identically for purposes of cooperation. The defendant was sentenced first and after his brother received two levels more than he did for cooperation at his later sentencing hearing, the defendant filed a motion to compel the government to file a Rule 35(b) motion giving him the same reduction. The Court of Appeals noted that Rule 35(b) provides a mechanism for the government to seek a reduction in a defendant’s sentence but not the defendant. If a defendant seeks to enforce a promise to file a Rule 35, he must do so through a 2255 petition. Because the defendant had already filed a previous 2255 petition, the next question was whether his new filing was “successive” such that he needed permission from the Court of Appeals for its filing. The court noted that not every petition numerically second is necessarily “successive.” Joining a number of other circuits on the question, the court held that a petition or motion based on a claim that did not become ripe any earlier than until after the adjudication of the petitioner’s first petition or motion is not “second or successive” within the meaning of Sections 2244 and 2255(h). The court noted, however, that it expressed no view concerning claims that become ripe in between the filing and adjudication of a first petition. In this case, the defendant’s claim did not become ripe until the government moved for the additional reduction of his brother’s sentence, an event occurring after his original 2255 petition had been decided. Nevertheless, the defendant’s petition was filed outside of the 1-year statute of limitations because he did not file his petition within 1-year of learning of the reduction his brother received.

SENTENCING

United States v. Wang, No. 11-3363. The defendant was involved in a high-volume false document conspiracy that produced an estimated 7,000 phony identification documents for customers in Illinois. Members of the conspiracy altered valid passports to match their customers’ identification information, created fake documents to prove Illinois residency, and helped their customers obtain state identification cards or driver’s licenses. Wang participated in the conspiracy from “no later than 2008” until February 2009, connecting customers with document manufacturers, transporting them to state facilities, collecting payments, and retrieving false passports for reuse. At sentencing, Wang received a nine-level increase to his base offense level because the district court held him accountable for more than one hundred false documents. The court also denied Wang’s request for a minor participant reduction, finding that his active role in the conspiracy did not warrant a reduction. Wang appealed both of these decisions. The Court of Appeals affirmed, noting that the defendant was responsible for the activities of his co-conspirators because they engaged in a reasonably foreseeable, jointly undertaken activity. Likewise, the defendant was not a minor participant, but an important and active member of the conspiracy.

The Supreme Court issued 6 new criminal opinions and no new grants of certiorari in a criminal case this week. The Seventh Circuit issued no precedential opinions in criminal cases this week. For a complete list of criminal issues pending in the Supreme Court, click HERE)

New Supreme Court Opinions

1. Chaidez v. United States, No. 11-820

Whether the Court's decision in Padilla v. Kentucky, holding that criminal defendants receive ineffective assistance of counsel under the Sixth Amendment when their attorneys fail to advise them that pleading guilty to an offense will subject them to deportation, applies to persons whose convictions became final before its announcement? HELD: The Court's decision in Padilla v. KY is not retroactive for cases pending on direct review when Padilla was decided. Read the full opinion HERE.

2. Evans v. Michigan, No. 11-1327

Whether the Double Jeopardy Clause bars retrial after the trial judge erroneously holds a particular fact to be an element of the offense and then grants a midtrial directed verdict of acquittal because the prosecution failed to prove that fact? HELD: Double Jeopardy Clause bars retrial in this circumstance. Read the full opinion HERE.

3. Johnson v. Williams, No. 11-465

Whether a habeas petitioner's claim has been "adjudicated on the merits" for purposes of 28 U.S.C. § 2254(d) where the state court denied relief in an explained decision but did not expressly acknowledge a federal-law basis for the claim? HELD: Under the habeas statute, when a state court rules against a defendant in an opinion that rejects some of the claims but does not expressly address a federal claim, a federal habeas court must presume, subject to rebuttal, that the federal claim was adjudicated on the merits. Read the full opinion HERE.

4. Henderson v. United States, No. 11-9307

Whether, when the governing law is unsettled at the time of trial but settled in the defendant's favor by the time of appeal, an appellate court reviewing for "plain error" should apply Johnson v. United States's time-of-appeal standard, as the First, Second, Sixth, Tenth, and Eleventh Circuits do, or should apply the Ninth Circuit's time-of-trial standard, which the D.C. Circuit and the panel below have adopted? HELD: Regardless of whether a legal question was settled or unsettled at the time of trial, an error is plain within the meaning of the federal rules as long as the error was plain at the time of appellate review. Read the full opinion HERE.

5. Florida v. Harris, No. 11-817. In a unanimous opinion written by Justice Kagan, the Supreme Court reversed the Florida Supreme Court's holding that, to demonstrate a drug detection dog's reliability, the state must produce the dog's training and certification records, along with a wide array of evidence relating to the dog's reliability. Instead, the Court held, "[t]he question—similar to every inquiry into probable cause—is whether all the facts surrounding a dog's alert, viewed through the lens of common sense, would make a reasonably prudent person think that a search would reveal contraband or evidence of a crime. A sniff is up to snuff when it meets that test." This allows the state to introduce evidence of a dog's reliability and for the defendant to challenge that evidence, but does not "prescribe an inflexible set of evidentiary requirements." The Court noted that the Solicitor General acknowledged at oral argument that evidence of a dog's (or handler's) history or performance in the field "may sometimes be relevant." The other dog sniff case, Florida v. Jardines (No. 11-564), which presents the question "whether a dog sniff at the front door of a suspected grow house by a trained narcotics detection dog is a Fourth Amendment search requiring probable cause," has not yet been decided.

6. Bailey v. United States, No. 11-770. With Justice Kennedy writing for the majority, the Supreme Court held that Michigan v. Summers, 452 U.S. 692 (1981), which categorically authorizes law enforcement officers "to detain the occupants of the premises while a proper search is conducted" without need for any level of suspicion, Muehler v. Mena, 544 U. S. 93 (2005), does not extend to the detention of a person who is not within the premises being searched or its "immediate vicinity." As a result , the detention of an individual who had left the premises before the search began and was a mile away before police detained him was not lawful under Michigan v. Summers. The Court added that "[i]n closer cases courts can consider a number of factors to determine whether an occupant was detained within the immediate vicinity of the premises to be searched, including the lawful limits of the premises, whether the occupant was within the line of sight of his dwelling, the ease of reentry from the occupant's location, and other relevant factors."

Though the Second Circuit's attempted extension of Michigan v. Summers is now off the table, the Court was careful to point out the alternative avenues for lawful detention: "If officers elect to defer the detention until the suspect or departing occupant leaves the immediate vicinity, the lawfulness of detention is controlled by other standards, including, of course, a brief stop for questioning based on reasonable suspicion under Terry or an arrest based on probable cause. A suspect's particular actions in leaving the scene, including whether he appears to be armed or fleeing with the evidence sought, and any information the officers acquire from those who are conducting the search, including information that incriminating evidence has been discovered, will bear, of course, on the lawfulness of a later stop or detention."

Justice Breyer, joined by Justices Thomas, and Alito, dissented.

The Supreme Court issued no new criminal opinions and no new grants of certiorari in a criminal case this week.  The Seventh Circuit issued 4 precedential opinions in criminal cases this week, as summarized below.  For a complete list of criminal issues pending in the Supreme Court, click HERE)

New Seventh Circuit Criminal Opinions

United States v. Patrick, No. 12-1789.  The defendant was convicted on federal sex trafficking charges.  He was sentenced on four counts to a total of 360 months in prison, consecutive to a 20-year state term he was serving.  On appeal, he argued that the district court committed procedural error by failing to discuss his cooperation with the authorities and by seemingly basing the sentence on extraneous factors. The court agreed that, so far as the written record reflected, the district court did not give adequate consideration to his cooperation and the court therefore vacated the sentence. At Patrick’s sentencing hearing, the judge discussed Patrick’s criminal history at length. He expressed his concern that crime causes poverty and described the decline of his own childhood neighborhood. He then commented that it was hard to find “positives” about Patrick and rejected defense counsel’s suggestion that Patrick cared about his 12 children, adding this unfortunate remark: “Twelve kids by 10 different women. I mean, my God, how can you even satisfy 10 different women? I can’t even satisfy my wife.” He also chastised Patrick for failing to fulfill his patriotic duty. When reminded of the government’s motion for a reduced sentence based on Patrick’s cooperation, the judge stated that he would grant the motion by imposing a 360-month sentence rather than a life sentence, but that this sentence would run consecutively to Patrick’s 20-year state sentence. The government reminded the judge that it had in fact recommended that the federal sentence run concurrently with the state sentence. The judge responded, “I know what the recommendation of the Government was. But it’s clear that the Court does not have to accept the recommendation of the Government.” At no point in the record did the judge explain why he had chosen not to follow the government’s recommendation or why, apparently, he gave such little weight to Patrick’s cooperation.  The court’s failure to properly address the defendants mitigating argument on the record required a remand.  The court also noted concern about whether the court appreciated the severity of its sentence.  The sentence imposed was the functional equivalent to a life sentence.  Had the court viewed the length of the sentence in proper perspective, it might have given more weight to the defendant’s mitigating arguments.  NOTE:  This is yet another reversal where the court fails to comment on a mitigating, principal argument of a defendant at sentencing.  The court has demonstrated a willingness to remand in such cases, and the number of such cases is growing steadily.  This is also the second recent case where the court has made mention of how a court needs to consider whether a lengthy sentence is the equivalent to a life sentence.  Clearly a signal to make this argument in the right cases for a variance. 

Even if government breached plea agreement by relying on immunized statements of defendant at sentencing, error was harmless where the same information was supported from other independent sources. United States v. Bennett, No. 11-3245.   The DEA interviewed Gregory Bennett in connection with a series of transactions involving marijuana, MDMA (commonly known as “ecstasy”), and crack cocaine. In an attempt to induce complete truthfulness, the government, prior to the interview, agreed not to use Bennett’s statements against him, provided that Bennett promised not to later take a position inconsistent with his interview statements. During this proffer session, Bennett admitted that he had supplied all three drugs to a government informant. After the proffer interview, Bennett fled and went into hiding. A grand jury later indicted him. In 2010, Bennett was arrested living under an assumed name in Georgia. Bennett pled guilty to the possession of ecstasy and marijuana with the intent to distribute both. On appeal, he alleged that the government violated the terms of the original proffer agreement during the sentencing process, along with other subsidiary errors.  The court of appeals affirmed.  The defendant argued that the government breached the agreement by using his statements at sentencing; the government argued the defendant breached the plea agreement by taking inconsistent positions in emails with the government at sentencing when he argued that he was not responsible for crack cocaine.  The court resolved the dispute by noting that even if the government breached the agreement, any error related to the use of the defendant’s statements was harmless because the government presented multiple sources of evidence for the same information contained in the defendant’s proffer.  The court also rejected the defendant’s arguments that his drug quantity was improperly calculated, that he was improperly found to be a leader/organizer,  and that he was wrongfully denied an acceptance of responsibility adjustment. 

Officer lacked reasonable suspicion to stop a car obeying all traffic laws, but which was a different color than indicated in the vehicle’s registration information.  United States v. Uribe, No. 11-3590.  Upon interlocutory appeal by the government of the district court’s grant of a motion to suppress evidence, the Court of Appeals affirmed.  The following facts were present before the officer stopped the defendant’s car:  “Early one morning,  Jesus Uribe was driving along Interstate 70 in Indiana. Apparently, he was not speeding or driving too slowly, weaving recklessly across lanes, crossing the dividing line, or giving any indication that he was intoxicated. Nor is there evidence that Uribe’s vehicle, a blue Nissan Altima with Utah plates, was in violation of any of Indiana’s numerous vehicle requirements—no malfunctioning brake lights, improperly tinted window, visibly altered muffler, or expired license plate. Only one aspect of Uribe’s travel was interesting: the blue Nissan he was driving had a registration number that traced back to a white Nissan. Although this color discrepancy alone is not unlawful either in Indiana, where Uribe was driving, or in Utah, where the car was registered, the deputy following Uribe’s car initiated a traffic stop “to check for registration compliance.” That stop led to a search of the vehicle, nearly a pound of heroin, and a federal indictment.”  The district court and the Court of Appeals held that these facts did not support reasonable suspicion to stop the car.  The only articulable fact for stopping the vehicle was the color discrepancy, but, as a matter of first impression in any federal court, the court held that a discrepancy between the observed color of a car and the color listed on its registration alone insufficient to give rise to reasonable suspicion.  Although other circuits have held that it can be considered as a factor among many, no court has ever held that this fact alone is sufficient.  The government tried to argue that the time of the stop—2:00 am—also supported a finding of reasonable suspicion, but the court of appeals noted that nothing there was nothing suspicious about an out-of-state care travelling on an interstate highway at night.  NOTE:  In addition to finding for the first time that a lawful discrepancy in color between a car and its registration information alone does not support a stop based upon reasonable suspicion, the court also rejects the absurd argument that driving on an interstate highway at night is somehow suspicious.  Perhaps in the future this case could be cited to fend off the equally, but more readily acceptable to the courts, argument that somehow driving in a “high crime area”—aka almost anywhere in a city—is somehow suspicious as well.

Testimony of Spanish-speaking linguist identifying defendant’s voice on recordings was not expert testimony, but lay opinion testimony admissible under Rule 901(b).  United States v. Mendiola, No. 10-1595.  A Spanish-speaking linguist working for the Drug Enforcement Administration (DEA) listened to recordings of Carlos Mendiola’s prison telephone conversations prior to testifying before a jury that Mendiola’s voice was likely the one on several wiretapped calls in which Mendiola and others planned a large-scale cocaine deal. Mendiola appeals his conviction, arguing that the linguist’s testimony constituted impermissible opinion testimony under the Federal Rules of Evidence and violated the Best Evidence Rule.  The court rejected these arguments, noting that Federal Rule of Evidence 901(b) enunciates the amount and quality of evidence sufficient to satisfy the requirement of voice identification.  That rule provides that “an opinion identifying a person’s voice—whether heard firsthand or through mechanical or electronic transmission or recording—based on hearing the voice at any time under circumstances that connect it with the alleged speaker.” The accompanying notes state that “aural voice identification is not a subject of expert testimony.”  Moreover, the bar for “familiarity” is not a high one.  Even hearing a defendant’s voice once during a court proceeding has been deemed sufficient to meet the “familiarity” requirement.  Here, the witness listened to both the recordings and the recording exemplar of the defendant’ voice.  This was enough to meet the minimal “familiarity” requirement.  Although the defendant attempts to analyze the admissibility of the evidence under the rules governing experts, and in fact never mentions Rule 901(b), that rule is the correct rule to analyze the admissibility of the testimony.  The evidence was clearly admissible under that Rule and, accordingly, the court affirmed the defendant’s conviction. 

The Supreme Court issued no new criminal opinions and no new grants of certiorari in a criminal case this week.  The Seventh Circuit issued 6 precedential opinions in criminal cases this week, as summarized below.  For a complete list of criminal issues pending in the Supreme Court, click HERE)

            A.        New Seventh Circuit Criminal Opinions

District court erred in applying a sentencing enhancement for possession of a firearm during course of drug conspiracy where there was insufficient evidence to show that the defendant’s co-conspirator’s possession of weapons was reasonable foreseeable to him.  United States v. Block, No. 10-3447.  This appeal involved eight defendants, all of whom pled guilty to conspiracy to possess with intent to distribute more than a kilogram of heroin and more than fifty grams of crack.  The defendant’s jointly argued that the district court failed to make a conservative drug quantity calculation for sentencing purposes.  However, the court reviewed the record carefully and concluded that the district court carefully calculated the amount of drugs involved in the conspiracy using the best, most conservative evidence presented.  After rejecting a number of other relatively routine sentencing issue, the court finally considered a defendant’s argument that the district court improperly applied a 2-level enhancement under § 2D1.1(b)(1) for the possession of firearms by his co-conspirators.  The court noted that it has repeatedly observed that the enhancement is not only applicable for the defendant who actually possesses a gun in the course of a drug offense, but “section 1B1.3(a)(1)(B) makes clear that defendants can also be on the hook for firearms possessed by their coconspirators so long as such possession was reasonably foreseeable.”  The district court must therefore make two separate findings: (1) that someone in the conspiracy actually possessed a firearm in furtherance of the conspiracy and (2) that the co-conspirator’s firearm possession was reasonably foreseeable to the defendant.  If the government meets its burden of showing gun possession by a co-conspirator, then the burden shifts to the defendant to show that it was clearly improbable that the gun was connected to the offense.  Here, the question revolved around the second fact.  Although the district court noted the commonality of guns in the drug trade, findings must still be made particular to the defendant in the case.  No evidence in this case was sufficient to prove that the defendant reasonably foresaw the use of gun’s by his co-conspirators (he was only a drug runner) and, consequently, the enhancement was improperly applied.  NOTE:  This should be a particularly useful case in this context in the future, as there are not many favorable precedents in our circuit finding that a co-conspirator’s possession of a firearm was not reasonable forseeable.

Subjective factors of intent of photographer and surrounding context can be looked to when determining whether a photograph is “lascivious.”  United States v. Schuster, No. 11-3338.  Eric Schuster pleaded guilty to knowingly using a minor to produce child pornography.  18 U.S.C. § 2251(a). The district court sentenced him to nearly 22 years of imprisonment. On appeal, Schuster challenged the sentence on four grounds: (1) the district court erred in finding that he distributed certain of the child pornography that he produced; (2) the distribution of other child pornography was not “relevant conduct” under the Sentencing Guidelines; (3) the district court erred in finding that a certain other photograph that he took of a young boy constituted child pornography(this finding impacted the Sentencing Guidelines calculation); and (4) the sentence is unreasonable. The Court of Appeals rejected all of the arguments.  Regarding the distribution enhancement, the court relied on the defendant’s own statement contained in a letter to the judge in the form of allocution, wherein he admitted to distributing the photographs he produced.  Nothing precluded the court from relying on this statement made by the defendant in applying the enhancement.  On the second argument, because the court properly found that the defendant distributed the pornography he created, there was no question that his other acts of distribution were relevant conduct to his offense.  On the question of whether a photograph of three young boys in the bathtub, with the focus on the boys’ genitals and their faces not depicted, the court used the Dost factors to determine whether the photographs depicted a “lascivious exhibition” (the court noted that it had not explicitly endorsed the Dost factors, but both parties agreed to use them in this case).  The court noted that the intent and motive of the photographer can be a relevant consideration in evaluating images.  Although it is the sexually suggestive nature of a photograph of a minor which distinguishes a depiction of simple nudity from a lascivious exhibition of the genitals, children typically are not mature enough to project sexuality consciously; instead, as the Ninth Circuit has pointed out, it is often the photographer who stages the picture in such a way as to make it sexually suggestive.” Thus, in some circumstances, the intent and motive of the photographer, by putting the images in context, place an important gloss on whether the relevant factors point to lasciviousness.  Here, there was no question that the defendant’s intent was to focus on the genitals, thereby creating a sexually suggestive photo.  Moreover, the government presented evidence that not only was the defendant sexually interested in young boys generally, but presented evidence that he was also sexually interested specifically one of the boys depicted in the photo.  This combination of factors was sufficient.  Finally, regarding the reasonableness of his sentence, the court noted that a district court may, but not must, disagree with the severity of the sentences called for by the Guidelines.  Here, the judge considered the argument and rejected it, which was within his discretion.  NOTE:  This case importantly, for the first time in this circuit to my knowledge, adds a subjective-intent-of-the-photographer element to the question of whether a photograph is a “lascivious exhibition” of the genitals.  Previously, the practice has been to look at the four corners of a photograph.  Now, the court endorses a more subjective approach which could bring a much larger set of photographs within the definition. 

District court may not include in drug quantity calculation drugs which a defendant never intended to actually provide to a supposed buyer.  United States v. Love, No 11-2547.  In an appeal from a conviction involving drug offenses, the court considered a number of issues.  Most significantly, the court reversed the district court’s calculation of drug quantity.  In the present case, the drug quantity was derived from a “reverse sting operation.”  In such cases, the base amount generally includes the agreed-upon quantity of the controlled substance.”  However, if the defendant establishes that the defendant did not intend to provide or purchase, or was not reasonably capable of providing or purchasing, the agreed-upon quantity of the controlled substance, then the court must exclude from the offense level determination the amount of controlled substance that the defendant establishes that the defendant did not intend to provide or purchase or was not reasonably capable of providing or purchasing.  Here, the defendant offered to sell the CI 1.5 ounces of crack.  It was undisputed, however, that the defendant never actually intended to sell the drugs to the  buyer—he wanted to rob and beat the buyer to avenge the robbery of his crack house.  Reviewing under the plain error standard, because it was undisputed that the defendant never intended to provide the buyer with the 1.5 ounces of crack, it should have been excluded from the drug quantity calculation.  Therefore, the court vacated the sentence and remanded.  NOTE:  The facts in the case are unusual in that there was no dispute that the defendant never intended to provide the crack to his supposed buyer.  However, the case is still useful as one of the rarer cases where a challenge to a drug quantity determination was successful. 

An error in calculating the applicable guideline sentencing range cannot be corrected in a postconviction proceeding now that the guidelines are advisory.  Hawkins v. United States, No. 11-1245.  The petitioner was found to be a career offender at sentencing.  However, subsequent Supreme Court precedents made clear that he did not have the requisite qualifying prior convictions for that designation.  The defendant filed a 2255 to correct the error, but the district court refused to consider the petition, finding that such an error was not of the type that can be corrected on collateral attack.  The Court of Appeals, with Judge Rovner dissenting, agreed.  The Seventh Circuit had previously held that such errors were cognizable in a 2255 in Narvaez v. United States, 674 F.3d 621, 629-30 (7th Cir. 2011).  However, the Guidelines were mandatory in the petitioner’s case in Narvaez.  Thus, it was arguable that under the mandatory guidelines, the guideline error in that case resulted in a sentence that exceeded the maximum authorized by “law.”  Now that the Guidelines are only advisory, it can no longer be argued that the court imposed a sentence “in excess of the maximum authorized by law.”  NOTE:  This is a very bad case for criminal defendants.  It was hoped that the Court would not limit Narvaez to claims under the old mandatory Guideline regime.  Given that nearly all new claims will involve defendants sentenced under the advisory guidelines, a defendant’s ability to get a guideline error corrected in a collateral proceedings is nearly dead.  The only exception is an error where the district court believes the Guidelines are actually mandatory, and I don’t see that happening much if ever in the future. 

CJA Funds may not be used to pay appointed counsel in 3582(c)(2) cases.  United States v. Foster, No. 12-2699.  For the first time in any circuit, the Seventh Circuit has held that there is no statutory authorization to use CJA funds to pay appointed counsel to represent defendant’s litigating 3582(c)(2) petitions.  Accordingly, if you have a voucher pending in such a case, you will not get paid.  Likewise, if you accept an appointment in such a case, it must be on a pro bono basis.  It is unclear whether Federal Public Defenders can accept such appointments.  This is not good, to say the least.

In 3582(c)(2) cases, if 5G1.1 was not used to set the guideline range at the mandatory minimum, then 5G1.1 should not be used when determining the guideline range when applying a retroactive amendment.  United States v. Wren, No. 12-1565.  The petitioner originally had a guideline range above his statutory mandatory minimum.  He then received a substantial assistance reduction below that range.  Because the original range was above the statutory mandatory minimum, 5G1.1 never applied at the original sentencing hearing.  Applying the retroactive crack cocaine amendment, the petitioner’s range was now lower than the statutory mandatory minimum.  However, the district court then applied 5G1.1, which provides that if the guideline range is below the mandatory minimum, the guideline range becomes the mandatory minimum.  The Court of Appeals held that this was an error.  The court noted that 1B1.10 states that a court should apply the retroactive amendment and “leave all other guideline application decisions unaffected.”  Because 5G1.1 was not used originally, it should not be used when recalculating the guideline range under the retroactive amendment.  NOTE:  This decision will give relief to a small group of petitioner’s who have generally be denied 3582(c)(2) relief in the past.  This decision will benefit petitioners who had an original guideline range above the mandatory minimum and received a sentence below the range, either through the safety valve or cooperation.  If their new range is below the mandatory minimum, 5G1.1 should NOT be used to reset the range to the mandatory minimum.  Rather, use the new range without reference to the mandatory minimum, and any proportionate reduction should be taken of this range. 

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Last modified: 09/05/12