Monday, March 12, 2018

Carrying a gun near (somebody's) drugs not enough for sentencing enhancement

If we know anything by now, it's that guns + drugs = a higher sentence, right?

Not always. Case in point: United States v. Ferrell.

Defendant Ferrell pleaded guilty to being a felon in possession of a firearm. State parole officers had been looking to serve a warrant on Mr. Ferrell when they saw him go into a garage while carrying a gun, near an area of the garage where drugs were later found. On not much more than this evidence, the district court gave Mr. Ferrell a four-level sentencing enhancement under USSG § 2K2.1(b)(6)(B) (possessing a firearm in connection with another felony offense, in this case drug possession).

In a very fact-intensive opinion, the Tenth Circuit reversed. The Court held that carrying a gun in proximity to drugs absent sufficient evidence that the defendant possessed the drugs was not enough to support the enhancement.

Know what elements are necessary for every enhancement. Challenge those elements. You just might win.

Tuesday, March 6, 2018

Your mission: challenge the ping!

The Tenth Circuit would like to decide whether a "ping"---a service provider's court-ordered identification of a cellphone's real-time location---is a "search" for Fourth Amendment purposes. 

But first, the issue must be properly raised and briefed. Do you have the right case, and are you up for the task? If so, take a look at the Tenth Circuit's decision this week in United States v. Banks, rejecting a pinging challenge on other grounds, but noting that "whether pinging a phone to determine its current location is a search under the Fourth Amendment—remains an open question in this circuit," and discussing the considerations and cases that might come into play in answering that question.

Sunday, March 4, 2018

Entire First Circuit calls on High Court to re-examine the sentence 'proportionality principle'

The Eighth Amendment applies to noncapital sentences, too. And yet, if a sentencing court is stripped of making any individualized findings and is left only with an arithmetical assessment that “seemingly could have been more severe only if it had required death,” where then is the Eighth Amendment’s proportionality safeguard?

The First Circuit posed this heady question just last week, explicitly urging the U.S. Supreme Court to revisit its outdated precedent on the Eight Amendment’s applicability to lengthy, adult prison sentences.

In United States v. Rivera-Ruperto, 130 years of the defendant’s sentence was imposed for six stacked § 924(c) convictions stemming from an FBI sting operation targeting Puerto Rican police officers. Rivera-Ruperto participated as an armed security guard in a number of “deals” involving fake cocaine. FBI agents posed as the buyers and the sellers. As a consequence of his involvement in this one sting operation, Rivera-Ruperto received a mandatory sentence of five years for his first § 924(c) conviction followed by consecutive twenty-five-year prison sentences on the subsequent five § 924(c) convictions.

The First Circuit denied Rivera-Ruperto’s request for rehearing en banc to challenge the constitutionality of his sentence, but in doing so, the entire Circuit joined in Judge Barron’s momentous concurrence calling on the U.S. Supreme Court to reassess its three-decade old, three-judge concurrence in Harmelin v. Michigan, 501 U.S. 957 (1991), which controls the outcome of this case. Under Justice Kennedy’s concurring opinion in Harmelin, the Eighth Amendment “forbids only extreme sentences that are ‘grossly disproportionate’ to the crime.” But as Judge Barron cogently opined, sentencing courts “have no choice but to approve mandatory ‘forever’ sentences under § 924(c) so long as they can hypothesize a rational reason for the legislature to have thought that the underlying criminal conduct was as serious as the large quantity drug possession at issue in Harmelin.” (Note: see United States v. Angelos, 433 F.3d 738, 750-51 (2006), for Tenth Circuit precedent applying Harmelin in this fashion.)

Judge Barron’s concurrence provides thorough insight on why Congress did not carefully consider the resulting impact of 924(c) convictions and stacking in general. The concurrence also provides two lines of more recent Supreme Court precedent (under Alleyne and Miller/Graham) as reinforcement for why the Court must reassess Harmelin in the modern era. As Judge Barron concluded, “a consequence as grave as the one that Harmelin requires in a case like this should have the imprimatur of more than only a nearly three-decade old, three-Justice concurrence.” 

This isn’t the only kind of fact pattern and noncapital sentence that the Eighth Amendment’s proportionality principle should reach, but it’s certainly one of them according to the entire First Circuit.

Tuesday, February 27, 2018


Over the past 30 years, the Kansas Federal Public Defender office has grown in size, scope, and skill due in large part to one person: Bec, our Administrative Officer extraordinaire. When Bec first came to work for the Kansas FPD in 1987, we were a scrappy office of 8 employees. Today we number 44. She built the FPD.  

She calls herself a bean counter. In truth, she is a public defender in every sense of the word. We can walk into court and represent our clients because Bec makes sure we have the resources and structure we need. Bec supports and protects us, and our clients, in ways we don't even know. The wheels turn, and keep turning, every day because of Bec.

And we are not the only beneficiaries of Bec's wisdom and patience. Over the years she has trained and advised defender offices across the country.

Bec has outlasted lawyers, judges, office relocations, sequestration, and our worst fashion choices. She brings order to our chaos, reason to our frivolity.

The amazing thing is that despite 30 years of this she is (or at least seems to us) far too young and essential to retire. And yet that is what she is going to do.

Bec: Thank you, to infinity, thank you. You have more than earned your escape. Our hearts are broken and we will miss you. But we can't wait to see what you do next. Bon voyage!

bindweed, corridor, garden

Sunday, February 25, 2018

What are you waiving in your client's plea agreement? And why?

Last week, the Supreme Court decided United States v. Class, holding that Mr. Class did not waive his right to challenge the constitutionality of the statute under which he pleaded guilty merely by pleading guilty.

Oh goody! Does that mean we don't have to explicitly reserve the right to appeal constitutional (or other) issues in our plea agreements?

No! No! Please, no.

Mr. Class was in a unique position. He had waived some specific rights and retained others, but his plea agreement did not mention his pretrial motion to dismiss the gun charges against him on due-process and Second Amendment grounds. This was a challenge to the validity of the statute of conviction that was simply outside the scope of the agreement's specific waivers. The only question before the Supreme Court was therefore whether the guilty plea itself implicitly waived the issue and barred his appeal. The Supreme Court held that it did not. Mr. Class would be in a very different position had he pleaded guilty under a slightly different agreement---for instance, one with a nonspecific appeal waiver.

What lessons can we learn from Class? Not many. As Justice Alito complains in his dissenting opinion, the majority does not offer much guidance on interpreting explicit waivers, and its loose language "will bedevil the lower courts." So where do we go from here?

First and foremost, make that plea explicitly conditional and expressly reserve the right to appeal any dispositive pretrial motions that you intend to appeal. Don't take the risk of relying on Class to open any appeal doors that have previously been closed. Those doors remain closed.

And consider kicking the waiver habit altogether. Not all jurisdictions use appeal waivers. A 2013 national waiver survey determined that prosecutors do not demand any appeal or collateral-attack waivers in their plea agreements in 17 out of the 94 federal judicial districts. Susan R. Klein, Aleza S. Remis, Donna Lee Elm, Waiving the Criminal Justice System: An Empirical and Constitutional Analysis, 52 AM. CRIM. L. REV. 73 (2015). And many other districts use only limited waivers. Id.

What might a limited waiver look like? It might exclude (that is, reserve the right to appeal), for example, constitutional sentencing claims and plain guideline error. And it might reserve the right to file sentence-reduction motions based on future retroactive amendments to the guidelines. Remember, a plea agreement is just a contract---we can control its terms.

Finally, let's think about what we're getting in exchange for our waivers. Is that third acceptance point really worth waiving all future remedies for a sentence that has yet to be pronounced? No---your client should get that point if otherwise qualified. The application notes to USSG § 3E1.1 state that the government "should not withhold" a § 3E1.1(b) motion "based on interests not identified in § 3E1.1, such as whether the defendant agrees to waive his or her right to appeal." USSG § 3E1.1, comment. (n.6).

Let's not shut any more doors than we absolutely have to, and not unless we're gaining a measurable benefit for our clients.

black-and-white, decision, doors

Monday, February 19, 2018

Cross-border data and the contours of law enforcement's reach

As you’ve likely seen if not already digested, there has been substantial chatter lately regarding United States v. Microsoft (also known as “the Microsoft Ireland case”), which is scheduled for oral argument before the Supreme Court next week. If you’ve fallen behind, discourse on this case may be found here, here, and here.

To quickly summarize, in 2013, under the Stored Communications Act (SCA), the U.S. government sought a warrant to seize from Microsoft the contents of a customer’s email account that the government believed was being used for drug trafficking in or into the United States. Microsoft turned over data stored in the United States (including the address book linked to the email account), but moved to quash the search warrant to the extent that the warrant directed Microsoft to produce content stored on a server located in Ireland. The district court denied the motion to quash, but the Second Circuit reversed, vacated, and remanded the matter, finding that the district court lacked the authority to enforce the warrant against Microsoft given that the SCA “[n]either explicitly or implicitly” envisions “the application of its warrant provisions overseas.”

Image result for global reachOn February 27, the Supreme Court will hear oral arguments to address whether federal courts have the authority under the SCA to issue warrants for the search and seizure of foreign-stored data, and whether the presumption against extraterritoriality and the concomitant interests of the international community, for example, forbid such action.
Aside from the permissible scope of the SCA, the arguments and authorities presented by the parties—and those found within the 23 amicus briefs—as well as the ultimate decision in this case, may prove relevant for challenging warrants seeking electronically-stored information (ESI) from unknown locations under the recently amended Rule 41 (which we have previously blogged about here). We know that much of the impetus behind Rule 41’s changes regarding searches for ESI derived from the government’s inability to establish the location of a target, placing a search and seizure outside the scope of Rule 41’s then-jurisdictional limitations (not to mention the Fourth Amendment’s particularity requirements). Rule 41 now purports to authorize a magistrate or district court judge to issue a warrant that permits law enforcement to use remote access to search and seize electronic storage media located outside the judge’s district.

But may a judge do so knowing that the government is undoubtedly seeking authorization to search and seize electronic data located not only outside of its district, but also outside of the United States? Rule 41, as amended, does not explicitly address the international conundrum, and given that it was passed under the guise of a procedural rule change, it is lacking any delicate balancing of competing interests by Congress.

Moreover, the subcommittee notes attached to Rule 41’s amendment submitted by the Judicial Conference (the policy-making arm of the federal judiciary) readily acknowledges that the “[t]he amendment [to Rule 41] does not address constitutional questions, such as the specificity of description that the Fourth Amendment may require . . . leaving the application of this and other constitutional standards to ongoing case law development.”

Microsoft will not answer all questions about law enforcement’s international reach, but it hopefully will provide us with at least some insight into the High Court’s thinking in this complex area of search-and-seizure law.

Wednesday, February 14, 2018

A (tiny) peek inside DOJ's discovery manual

Thanks to the National Association of Criminal Defense Lawyers, we can now read a tiny portion* of the Justice Department's Federal Criminal Discovery Blue Book, unsealed by a D.C. District Court. The court denied full disclosure of the 265-page manual on work-product grounds.

The disclosed portions (select excerpts from a mere 17 pages) don't tell us much, but they do restate important Giglio policies---though at times with more of an eye toward keeping defense lawyers from "improperly introduc[ing]" impeachment information than toward complying with constitutional mandates:

More importantly, the excerpted policies may provide additional fodder for claims that the government has failed in its discovery duties.

*Available through a link on NACDL's news release.