Sunday, June 17, 2018

Palpably pretextual assertions can't cut it

As the Second Circuit reminds us this last week, a valid exception to the warrant requirement better apply before law enforcement goes traipsing through someone’s home without a warrant; palpably pretextual assertions later lodged as an exception cannot withstand scrutiny, especially when it comes to warrantless searches of the home, the “first among equals” under the Fourth Amendment. Florida v. Jardines, __U.S.__, 133 S.Ct. 1409, 1414 (2013) (“At the Amendment’s very core stands the right of a man to retreat into his own home and there be free from unreasonable government intrusion.”) (cleaned up). 
 
In United States v. Diaz-Jimenez, law enforcement carried out a warrantless search of a suspect’s home more than eight hours after the completion of an armed bank robbery. The search also took place after the two suspects had already been arrested. The district court denied Mr. Diaz’s motion to suppress evidence seized from the warrantless intrusion, and he was convicted by a jury after a joint trial. 

But the Second Circuit vacated Mr. Diaz’s conviction finding that the district erred in not suppressing the evidence. Neither Buie’s protective-sweep exception nor voluntary consent—“the only even arguably relevant exceptions to the warrant requirement”—could salvage the evidence. The government did not present any evidence to support a reasonable inference that at the time of the intrusion, law enforcement believed there was someone armed in the home—let alone anyone at all—to pose an ongoing threat. And the government’s second bite of the apple as to an exception authorizing the warrantless search, too, was without merit; any consent to search obtained from Mr. Diaz as he stood handcuffed outside his home surrounded by a SWAT team that had already conducted a sweep and discovered incriminating evidence could not be deemed voluntary. (As the Second Circuit noted, “[t]he prosecution did not even attempt to make such a showing.”) 

The court’s error, the Second Circuit concluded, “was certainly not harmless beyond a reasonable doubt” given that the evidence was “central” to the government’s case.

Tuesday, June 12, 2018

Guns guns guns

The Tenth Circuit wants us to know a couple of things about gun charges and gun sentencing enhancements.

First, the bitter. In United States v. Melgar-Cabrera, the Tenth Circuit overruled circuit precedent to hold that 18 U.S.C § 924(j) (providing enhanced penalties for section 924(c) deaths) is a discrete, stand-alone crime. It is not just a sentencing enhancement. A person may be convicted and sentenced under section 924(j) even absent a conviction under section 924(c).

And now for the sweet. In United States v. Francis, the Tenth Circuit held that the government must prove two things before a district court may impose the 4-level firearms-trafficking enhancement at USSG § 2K2.1(b)(5). That section applies if (among other conditions) the defendant transferred (or intended to transfer) two or more firearms to another person and knew or had reason to know that the other person's possession would be unlawful because that person had a prior conviction for a crime of violence, a controlled substance offense, or a misdemeanor crime of domestic violence. Got that? Okay. Here's what the government must prove:

(1) that the transferee actually had such a prior conviction at the time of the transfer (i.e., was not just an undercover agent pretending to have such a prior conviction); and

(2) that the defendant knew or had reason to know that the transferee fell into the guideline's narrow category of unlawful possessors (i.e., not just that the defendant knew or had reason to know that the transferee had some garden-variety felony): "The proper focus is on what the defendant knew about the specific transferee, not whether by the law of averages any given customer might qualify as an unlawful possessor as defined by § 2K2.1 cmt. n.13(A)(ii)(I), (B)."

Sunday, June 3, 2018

Circuit split: USSG § 4B1.2's "commentary offenses"

We have over the past several years blogged about advocates’ need to be weary of enumerated “commentary offenses” that are inconsistent with the guidelines themselves. (See, e.g., here and here.) And last week, in United States v. Winstead, the D.C. Circuit created a new and notable circuit split on the issue.

The Winstead court acknowledged that in Stinson v. United States, 506 U.S. 36 (1993) the U.S. Supreme Court held that the commentary to the guidelines should be treated as an agency’s interpretation of its own legislative rule. (Citing Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945)). “Thus, under this Seminole Rock deference, commentary in the Guidelines Manual that interprets or explains a guideline is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.”  
   
Irrespective of sister-circuit precedent holding otherwise, the D.C. Circuit found that “there is no question” that the commentary to § 4B1.2 is inconsistent with the guideline in that the commentary adds inchoate crimes that are not included in the guideline itself. (In this case specifically, the crime of attempted distribution). In so doing, the the U.S. Sentencing Commission has exceeded its authority under Stinson

Section 4B1.2(b) presents a very detailed “definition” of controlled substance offense that clearly excludes inchoate offenses . . . . [T]he Commission showed within § 4B1.2 itself that it knows how to include attempted offenses when it intends to do so. See USSG § 4b1.2(a)(1) (defining a “crime of violence” as an offense that “has an element the use, attempted use, or threatened use of physical force . . . .”) . . . . [S]urely Seminole Rock deference does not extend so far as to allow the Commission to invoke its general interpretive authority via commentary . . . to impose such a massive impact on a defendant with no grounding in the guidelines themselves.

The D.C. Circuit’s conclusion: Counsel’s failure to raise this sentencing issue before the district court, which categorized the defendant as a career criminal under § 4B1.1(a), constituted ineffective assistance of counsel under Strickland as a matter of law. “If the Commission wishes to expand the definition of ‘controlled substance offenses’ to include attempts, it may seek to amend the language of the guidelines by submitting the change for congressional review.”