Tuesday, April 22, 2014

Wherefore Art Thou, Smarter Sentencing Act?

Day after day, lonely Google News searches reveal little of the progress of the Smarter Sentencing Act.  As we have discussed before, passage of the SSA should benefit any client who is not already sentenced, regardless of the offense date.  So when is Congress going to pass the thing, already??!??!

Well, rumblings are growing louder.  The Senate version of the bill now has twenty-two co-sponsors, on an ideological spectrum from Patrick Leahy to Ted Cruz.  The New Orleans Times-Picayune reports that the "Senate is scheduled to begin consideration [of the SSA] in the next few weeks".  The Senate version of the SSA was placed on the general legislative calendar on March 11.  Reason believes that the bill has "bipartisan backing in the House as well as the Senate".  The ACLU says that the SSA has "some serious bipartisan support" and may be voted on in April.  Even President Bartlet is on board!

So...hang in there.  Any drug sentencing that can be conducted after the SSA lives or dies should be.

Monday, April 21, 2014

Gun Guideline Amendments

Largely lost in the furor over the amendments to the drug guideline is the changes to 2K2.1.  These changes minimize the risk of a sentence-busting cross reference, but make it more likely that enhancements are going to apply based on the possession of other weapons.

First, the amendment limits the court's ability to apply a cross reference by making only the gun of which the defendant was convicted of possessing eligible for cross reference fun.  The amendment provides that if
"the defendant used or possessed any firearm or ammunition cited in the offense of conviction in connection with the commission or attempted commission of another offense" a cross reference is available. So if the Government is using the Al Capone strategy by charging your client with possession of a gun to try to sentence him via cross reference for a homicide, this guideline amendment may help if different weapons were involved.

Second, the news is less sanguine concerning the (b)(6)(B) "in connection with" enhancement.  This common enhancement adds four offense levels to a client's sentence if he possessed a firearm in connection with another felony offense.  While the amendment could have limited this enhancement to the firearm that the defendant was convicted of possessing, it did not.  Instead, the Commission deferred to a mushy relevant conduct analysis, asking if  a weapon other than the one the defendant was convicted of possessing was ""part of the same course of conduct or common scheme or plan."

So, say your client is strongly suspected of robbing a grocery store with a shotgun in January.  He is then found with a .22 in August, and convicted of possessing the .22 after suffering a felony conviction.  A robbery cross reference is not available, because the client was not convicted of possessing the shotgun.  But an "in connection with" enhancement may still be available, dependent on how relevant conduct principles operate in the facts of the case.

Sunday, April 13, 2014

Win: A Curtilage Case

From our counterpart in Utah, a quick and solid win. Quick because it was argued March 20, and solid because it resulted in suppression of the handgun in a felon-in-possession case. US v. Chavez was an appeal by the government from the district court suppression of evidence found in the home where Chavez was arrested. The decision: officers did not have reasonable belief that Chavez was even present at the home when they crossed into the curtilage.

Short facts: A CI had info about Chavez. Police found an outstanding arrest warrant, however, it did not list the same address given by the CI. They determined that the house was owned by someone related to Chavez. A police officer went into the fenced backyard and looked through a gap in the blinds to see Chavez inside with a handgun; police moved in, with tear gas and a SWAT team, arrested Chavez, and found the gun.

Chavez challenged the warrantless police entry into the backyard curtilage, and that the arrest warrant did not justify entry onto the property. Relying on Payton, 455 US 573 (1980), the Circuit found,

  • "It is unnecessary for this court to decide whether the officers had a reasonable belief Chavez lived in the Westwood house, because, even if they did, we conclude they did not have an objectively reasonable belief he was present at the time they entered the curtilage."
  • "Officers are not required to actually view the suspect, but the circumstances must give them a reasonable belief the suspect is present in the home. Relevant facts include, but are not limited to, the presence of an automobile, the time of day, and the operation of lights at night."  
  • "Because officers did not have an objectively reasonable belief Chavez could be found within the Westwood house at the time they entered the property, their entry violated his rights under the Fourth Amendment."  
Short take-away: For police to rely on an arrest warrant to cross into the curtilage of a residence, they must have had a reasonable and objective belief that the target of the arrest warrant was actually present at the time of entry. 

For Chavez, "the observations made by Detective Hughes when he peered through the blinds into the Westwood house, and the fruits of those observations, must be suppressed. As the district court noted, this includes the firearm."

-- Melody


Sunday, April 6, 2014

Procrastinating Ethics

June, the summer month when some of us (me) start scrambling for the last hour of CLE ethics. Every year. Same scramble. Every. Year.  

To save some of us that angst, this year the FDO will offer an hour of ethics over lunch on June 18 in Topeka, June 19 in Wichita, and June 20 in KC. This will be a roundtable sort of event, so please send in any topics or questions ahead of time.  

This will also be one of the first opportunities to meet with the new CJA Administrator, and to talk about issues regarding the new CJA plan. Send in those topics and questions ahead of time, as well. 

Mark it on your calendars, details to follow soon.

-- Melody

Friday, March 28, 2014

CJA Practioners CLE

We hope you can join us for the Spring 2014 CLE

April 3 - Wichita
Click Here to Register
The Petroleum Club, Suite #900
100 N. Broadway, Wichita, KS 66202

April 4 – Lawrence
Click Here to Register
Lawrence Arts Center- Black Box Theater
940 New Hampshire St., Lawrence, KS 66044

Conspiracy Theories
CLE credit will include one hour of ethics. The balance of the seminar will focus on conspiracy law: the elements, variances, interdependence, hearsay, James hearings, instructions, relevant conduct -- it's a long list, plenty to talk about in an area that is often complex and difficult to litigate. 

New CJA Plan
Also, as mentioned in the section to your right, there will be an hour devoted to the new CJA plan.


   8:30-8:45   Registration

   8:45-9:00   Welcome

   9:00-9:50   Conspiracy: Foundational Concepts
                     Tom Bartee, Branch Chief, Federal Public Defender, Kansas City, KS

  9:50-10:40  Perspectives of a Former Prosecutor
                      Jaquelyn Rokusek, Jaquelyn Rokusek, Rokusek Law Office, Olathe, KS

10:40-10:55  Break

10:55-11:45  The New Criminal Justice Act Plan for the District of Kansas
                      Melody Brannon Evans, Federal Public Defender, Topeka, KS
                      The Honorable Eric Melgren, Wichita, KS (Wichita Program)
                      The Honorable Carlos Murguia  Kansas City, KS (Lawrence program),

  11:45-1:00  Lunch – provided

    1:00-2:15  Jeopardy: Evidentiary Issues in, Conspiracy Cases
                      Kirk Redmond, First Asst Federal Public Defender, Kansas City, KS

    2:15-2:30  Break

    2:30-3:20  Analyzing Electronic Discovery
                      Sandy Schnack, Paralegal, Federal Public Defender, Kansas City, KS
                      Lisa Ottens, Legal Assistant, Federal Public Defender, Kansas City, KS

    3:20-4:10  Ethical Issues in Conspiracy Cases
                      Duston J. Slinkard, Disciplinary Administrator, 
                      Office of the Disciplinary Administrator, Topeka, KS

 For more information contact tom_bartee@fd.org.

Wednesday, March 26, 2014

Judge Robinson: Pathways to the Bench

Judge Robinson was interviewed as part of a series, Pathway to the Bench, posted on the US Courts website, here. Here's the opening:

U.S. District Court Judge Julie A. Robinson’s journey to the federal bench in Topeka, KS, started when, at the age of five, she decided to become a lawyer. She credits her success to her father’s faith in her and the fact that her mentors set high standards and demanded the best from her.

-- Melody

Sunday, March 23, 2014

There's an app for that

     There is an updated federal courts app that includes access to PACER, federal rules of criminal procedure, rules of evidence, appellate rules, and civil and bankruptcy related rules, too. Links below.

Disclaimer: Haven't tried it yet . . .

Android: click to view in Google Play

Android, iPhone, iPad: click to view in the Apple App Store 

-- Melody