Update: robbery is still not a crime of violence (at least Kansas robbery this time).

So a few months ago you thought we were just low on material when we blogged not once, not twice, but thrice about Bell, an Eighth Circuit case that held that Missouri second degree robbery is not a crime of violence. Maybe we were low on material but Kirk was also psychic when he said (back in November) that State v. McKinney was the "bellwether" case on the question as to whether Kansas Robbery was a crime of violence. He said that because in Kansas, a robbery could be sustained by "merely grabbing the victim’s purse, causing physical contact with her arm" it is not sufficient force as required under the force clause.

Earlier this week, the 10th Circuit agreed in Nicholas, citing McKinney for the important conclusion "that merely snatching a purse from someone’s possession is sufficient to support a robbery conviction" under Kansas law. Sound familiar? The Court concluded that Kansas robbery "does not require the use, attempted use, or threatened use of violent force as defined in Johnson" and is therefore not a crime of violence under the ACCA.

The case is unpublished for some reason but is more evidence in the consistent trend we mentioned previously that robbery is not a crime of violence.

Government hacking and the dark net: coming soon to the Tenth Circuit

By Rich Federico – Staff Attorney (R&W)

In February 2015, the FBI purposefully became one of the largest distributors of child pornography in the world. As part of Operation Pacifier, the FBI had just seized computer servers in North Carolina that hosted the Playpen website, which was designed and operated for the online exchange of child pornography. Users could access Playpen anonymously through the dark net. Once it seized the servers and arrested the site administrator, rather than shut it down, the FBI kept Playpen running for thirteen days to monitor traffic and gather information on users. The government estimates that during the time it operated the site, over 100,000 unique users logged into the website, and made available 9,000 images and 200 videos of child pornography.

The problem for the FBI was the anonymity of the users did not allow it to gather the information it needed to investigate the persons on the other end of the network connection. The FBI solved this problem by deploying malware to hack into thousands of computers around the world to unmask the users who accessed the Playpen site. Geographic borders and jurisdictional boundaries were no match for the government’s cyber tools. In using these tools, the FBI opened a new frontier into cyber law-enforcement investigations which will undoubtedly strain Fourth Amendment jurisprudence.

Let’s start with some very basic tech background for the non-techies amongst us (which includes the author of this post). “Malware” is software designed to damage computer systems or temporarily take control over their operations. In the context of the Playpen investigation, the malware was referred to by the FBI as a “Network Investigative Technique” (NIT). The NIT temporarily (think fractions of seconds) took control over users’ computers to transmit information back to the FBI, including the IP address of the user.

The “dark net” was accessed in these cases through “The Onion Router” (TOR) Network, which was originally designed by the government for intelligence communications and operates to mask user-identities by using a series of network relays. Only the “exit node” of the relays to a website can be identified; the original user cannot be traced. There is nothing illegal about using TOR, but it doesn’t take much imagination to consider how it can be used to facilitate illegal activity (e.g. the Silk Road cases). It also doesn’t take much tech-savvy to use, as the TOR bundle can easily be downloaded and installed.

When is a prior sentence "based on a sentencing range that has subsequently been lowered by the Sentencing Commission?"

Luckily for him, in Mr. Jordan's case. He originally agreed to an 11(c)(1)(C) agreement to 168 months. The agreement included generic language that the parties were "not requesting imposition of an advisory guideline sentence." But the plea agreement itself mentioned a base offense level of 31 and a Guidelines range of 135 to 168 months. And at the change of plea hearing the prosecutor mentioned that Mr. Jordan was a criminal history category III and that the resulting guideline range was 135 to 168 months.

When the PSR came back, it recommended a higher range of 168 to 210 months based on a two level enhancement for possession of firearms. Without an objection to that range, the district court accepted the agreement and sentenced Mr. Jordan to 168 months, mentioning such a sentence was "at the low end of what the guideline range would otherwise have been."

Five years later, "Guideline Amendments 782 and 788 went into effect, retroactively lowering the base offense levels for certain drug quantities." This amendment would have reduced Mr. Jordan's base offense level by two levels. Mr. Jordan filed a motion for sentence reduction under 18 U.S.C. § 3582(c)(2) and requested a sentence of 135 months, which would have been the low end of the new range. The district court denied the motion for lack of jurisdiction. Mr. Jordan's appeal resulted from that denial.

The Tenth Circuit, using the Supreme Court's decision in Freeman, held that Mr. Jordan's sentence was "based on" the Guidelines and remanded the case to the district court to determine if Mr. Jordan should receive the reduction he originally requested.

Within-GL child-pornography sentence substantively unreasonable

We have blogged before about sentences declared substantively unreasonable by appellate courts, here, here, and here.

But those cases all involved upward variances.

This week, the Second Circuit declared a guideline sentence substantively unreasonable.

The defendant in the case, a first-time felony offender, was convicted of possessing and transporting child pornography. His guideline range was 210-262 months. Sentencing was a "stormy" affair, according to the appellate court, during which the defendant---an "intemperate, out of control, pro se litigant"---"repeatedly clashed with the court." The court sentenced the defendant to 225 months in prison, plus 25 years of supervised release.

On appeal, the Second Circuit reversed, describing this sentence as "shockingly high" and substantively unreasonable. The majority takes apart the child-pornography guideline, emphasizes research demonstrating that recidivism declines with age, highlights the cost of incarcerating aging convicts, and points out that this defendant's sentence was higher than the typical federal sentence for in-person sexual assaults.

And on top of that, the Second Circuit also shot down several onerous conditions of supervised release.

A must read for anyone seeking a variance or challenging release conditions in a child-pornography case.

Congratulations Melanie Morgan!

Congratulations to Melanie Morgan, the CJA Representative for the District of Kansas, who was recently elected to co-chair the Defender Services Advisory Group. DSAG is the national elected body that represents the FDO and CJA within the Administrative Office of the United States Courts. Melanie will have a tremendous opportunity to impact public defense and will have a voice in presenting the collective defense perspective of CJA panel lawyers as policy, management, and budgetary issues related to the defense function are considered. We are extremely thankful for all of Melanie's hard work and hours away from Kansas, her office, and family. And we are very proud of the excellent job she does representing our District.

Update: National commission on forensic science.

Last year we blogged (somewhat snidely) about a report from the nations leading scientists and engineers that reviewed the current landscape of forensic science. The report was critical of a number of fields from bitemark to fingerprint evidence. And we joked that as a result of the report, prosecutors all over the country were revisiting this landscape to see what changes they could make to account for this report (they did not).

If you think Jeff Sessions appointment as Attorney General would have signaled a positive move to look at the tough issues surrounding forensic evidence today, well, I got nothing for you. According to a statement released by the Justice Department, Sessions will end the Obama enacted National Commission of Forensic Science. While the commission may be gone, their scathing report lives on and hopefully will be cited in more and more motions and opinions as we tried to deal with the flaws in forensic science today. Since the report was moved to the archives after our last post, you can now find it here.

Thinking of waiving appellate rights? Think again, says the KBA

Last month, the Kansas Bar Association issued an ethics opinion (KBA Legal Ethics Opinion No. 17-02) concluding that "[i]t is unethical and inappropriate for defense attorneys and prosecutors to request a criminal defendant to waive or release claims (a) that the defense lawyer’s assistance was ineffective; or (b) that the prosecutor committed misconduct in the case in which a plea is to be entered."

This is a good reminder to check those plea agreements and make sure that---whatever other waivers they contain---they cannot be read to waive misconduct or IAC claims. And it's a good reminder, too, that all appeal and postconviction waivers in plea agreements are discretionary and negotiable. Waivers might be limited in scope by excluding, for example, constitutional sentencing claims, plain guideline error, and sentence-reduction motions based on future retroactive guideline amendments. When we ask a client to waive appellate rights, we should consider the scope of that waiver and be sure that the client is securing a real benefit in return.

Update: courts may take consecutive 924(c) counts in consideration when sentencing on predicate offense.

Last month we blogged on a pending Supreme Court case that asked (according to Justice Roberts): "whether, in calculating the sentence for the predicate offense, a judge must ignore the fact that the defendant will serve the mandatory minimums imposed under §924(c)."

Luckily, future Justice Gorsuch won't have another awkward disagreement with his soon to be fellow justices. In Dean, the Supreme Court agreed with Judge Gorsuch, who wrote in Smith that a district court may consider the harsh penalties associated with §924(c) when determining the sentence for the predicate offense.

A summary of the facts in Dean are helpful for understanding this decision. Mr. Dean was convicted of two §924(c) counts plus other robbery related offenses. The §924(c) counts mandated a 5 year and consecutive 25 year sentence. So the judge started the sentencing consideration at 30 years. But Mr. Dean was clearly a "follower" in the predicate robberies involved here. Mr. Dean also lacked "any significant history of any violence." And the district court showed a clear desire to consider this mandatory 30 year sentence for Mr. Dean, stating that a sentence of 30 years and a day would be "more than sufficient." However, the district court didn't believe it was able to give such a sentence, and instead imposed a below guidelines sentence of 40 months on the predicate offenses, resulting in a 400 month sentence.

Of course the text of §924(c) says "in addition to the punishment" involved in predicate offenses. But the statute doesn't say how much time it must be in addition to. So here, the district court showed a desire to sentence Mr. Dean to 30 year on the §924(c) counts and one day on the predicate offenses, but didn't believe it could do so. The Supremem Court said said the district court could do so, and reversed.

As we mentioned in the earlier post: "The Supreme Court decision looks to largely come down to a question of a textual construction versus the intent of congress." Justice Roberts concurred:

The Government speaks of Congress’s intent to prevent district courts from bottoming out sentences for predicate §924(c) offenses whenever they think a mandatory minimum under §924(c) is already punishment enough. But no such intent finds expression in the language of §924(c). That language simply requires any mandatory minimum under §924(c) to be imposed “in addition to” the sentence for the predicate offense, and to run consecutively to that sentence. Nothing in those requirements prevents a sentencing court from considering a mandatory minimum under §924(c) when calculating an appropriate sentence for the predicate offense.

Harsh mandatory gun sentence? Judge may subtract time from the predicate sentence to make up for it.

Sentencing courts may consider the harsh nature of a § 924(c) mandatory minimum sentence when deciding what sentence is appropriate for the predicate offense, said a unanimous Supreme Court this week in United States v. Dean.

As a general matter, federal sentencing statutes "permit a court imposing a sentence on one count of conviction to consider sentences imposed on other counts." And nothing in the text of § 924(c) restricts a court's general sentencing authority in this regard.

A broader point of interest in Dean: Chief Justice Roberts appeared to recognize what the sentencing data has shown over the years about offenders "aging out" of recidivism, and the futility of obscenely long sentences:

Dean committed the two robberies at issue here when he was 23 years old. That he will not be released from prison until well after his fiftieth birthday because of the §924(c) convictions surely bears on whether—in connection with his predicate crimes—still more incarceration is necessary to protect the public. Likewise, in considering "the need for the sentence imposed . . . to afford adequate deterrence," §3553(a)(2)(B), the District Court could not reasonably ignore the deterrent effect of Dean’s 30-year mandatory minimum.