Monday, December 28, 2015

Into the Morass: Beware Enumerated "Commentary Offenses"

Today we will focus more closely on two types of predicate offenses: (1) force-clause offenses, and (2) enumerated offenses. The career-offender guideline contains both. It defines "crimes of violence" that trigger the guideline as "any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that—

(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or

(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another."

U.S.S.G. § 4B1.2(a) (stricken language unconstitutional under United States v. Madrid, 805 F.3d 1204 (10th Cir. 2015)).

When asking whether a prior conviction matches a predicate offense, courts will compare the prior’s elements either to (1) the elements of the force-clause, in which case the prior must contain an element of physical force (actual violence, either used, attempted, or threatened), against the person of another (force against property won’t do here); or to (2) the generic elements of an enumerated offense (more on generic elements later).

BUT LOOK OUT! The application notes to § 4B1.2 define "Crime of violence" to include "murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling." § 4B1.2, comment. (n.1). The inclusion of these enumerated offenses in the commentary is not definitive. These "commentary offenses" will not trigger the career-offender guideline unless they either qualify as force-clause offenses under subsection (1), or are in fact listed as enumerated offenses in the guideline itself in subsection (2).

This is because "it is the text [of the guideline], of course, that takes precedence." United States v. Shell, 789 F.3d 335, 340 (4th Cir. 2015); see also Stinson v. United States, 506 U.S. 36, 43 (1993) ("If . . . commentary and the guideline it interprets are inconsistent in that following one will result in violating the dictates of the other, the Sentencing Reform Act itself commands compliance with the guideline.").

The Shell case provides a perfect example of this point. The question in Shell was whether a prior conviction for statutory rape qualified as a crime of violence for career-offender purposes. The Fourth Circuit held that it did not, despite the inclusion of "forcible sex offenses" in the list of commentary offenses. Even if the prior conviction might qualify as a "forcible sex offense," it did not qualify under the force-clause itself because it did not require "physical force against the person of another," and thus it could not be used to trigger the career-offender guideline: "§ 4B1.2 provides a separate two-part definition of crime of violence in its text, with the commentary serving only to amplify that definition, and any inconsistency between the two resolved in favor of the text." 789 F.3d at 345. See also United States v. Armijo, 651 F.3d 1226, 1236-37 (10th Cir. 2011) (prior conviction for reckless manslaughter did not trigger career-offender guideline despite inclusion of "manslaughter" in list of commentary offenses: "To read application note 1 as encompassing non-intentional crimes would render it utterly inconsistent with the language of § 4B1.2(a), which, as set out at length above, only applies to purposeful or intentional conduct.").

Bottom line: Don't let § 4B1.2's enumerated commentary offenses fool you or the court. Qualifying priors must still match the definition of "crime of violence" that appears within the guideline itself.

Sunday, December 20, 2015

Thinking of Taking the Fifth? Trust the Government. Don't Trust the Government.

Here's a Fifth Amendment quiz to start off your week:

Jose Delacruz was charged in state court with first-degree murder and aggravated robbery for his part in the beating death and robbery of a methamphetamine dealer. He was tried by a jury and acquitted of the murder but convicted of the robbery. Two months later, he was subpoenaed to testify at a codefendant's trial on similar charges. He refused, despite a state grant of use immunity, claiming that he feared federal prosecution. The United States Attorney had written him a letter stating that no federal prosecution of him would be forthcoming. But the letter also plainly stated that it did not constitute a formal grant of immunity. Did Mr. Delacruz have a valid Fifth Amendment claim?

Petitioners Neil Feinberg and others run a Colorado state-licensed marijuana dispensary. They are fighting the IRS in tax court over whether they can claim business-expense deductions for their dispensary. The IRS issued a discovery request seeking information about the exact nature of the dispensary. The petitioners refused, asserting their Fifth Amendment privilege. The IRS moved to compel a response, arguing that two consecutive Attorneys General have issued memoranda to field investigators in Colorado, instructing them not to prosecute state-licensed marijuana operations, and therefore the petitioners face no real threat of prosecution. Do the petitioners have a valid Fifth Amendment claim?

You can check your answers after the jump.

Wednesday, December 16, 2015

Double Dipping

Restitution is a creature of statute, specifically the Mandatory Restitution to Victims Act at 18 U.S.C.§ 3663A. The statute requires that restitution either attend the offense of conviction or an agreement of the parties, and that the offense must be the direct and proximate cause of harm to the victim. "[T]he Government must show both that the defendant’s conduct is the ‘but-for’ cause of the individual’s harm and that the defendant ‘proximately’ caused the harm."

The court often orders monthly restitution payments as a condition of supervision. In that event, other means of collection, such as garnishment, cannot be contemporaneously pursued by the government. That is double dipping, as the Tenth Circuit recognized today in US v. Martinez: "The government can enforce a restitution order only in a manner that does not exceed the payment obligations set out in the restitution order." The court had ordered Mr. Martinez to pay $2.7 million in restitution, and to pay monthly installments of 25% of net disposable income. The government could only enforce the court's order, not collect by other means at the same time.

One other point from the Martinez opinion. The court's oral pronouncement conflicted with the written judgment. The oral order controlled. "When the oral and written orders conflict, as they do here, we look to the oral pronouncement."

Restitution in child porn cases is a different matter, and infinitely more difficult to appraise. Also a creature of statute, it has been complicated by the Supreme Court decision in Paroline v. United States, which orders the district court to award restitution in an amount somewhere between a "token" and "severe." The court must disaggregate the original harm to the victim based on the defendant's offense of conviction. U.S. v. Galan, 804 F.3d 1287 (9th Cir. 2015). The Tenth Circuit has been rather demanding "regarding the specificity required to reach a proximate cause determination." U.S. v. Benoit, 713 F.3d 1 (2013) (Benoit I); U.S. v. Dunn, 777 F.3d 1171 (2015) ("But the clear rationale of Paroline is that a defendant should be held accountable for the measure of losses that he individually has caused."). And the government cannot pursue collection during the period of supervision, except to enforce the court's restitution order. No double dipping.

Sunday, December 13, 2015

Into the Morass: Predicate Schmedicate

Predicate offenses can trigger a variety of woes for our clients: mandatory minimum sentences, increased guideline sentences, detention hearings, and removal, to name some of the most common. These offenses generally fall into one of four categories: (1) force-clause offenses; (2) enumerated offenses; (3) drug offenses; and (4) residual-clause offenses. When analyzing a prior conviction (or current offense) to determine whether it can be categorized as a relevant predicate offense, it is important to note the precise predicate language of the statute or guideline at issue. And now that the residual clauses are off the table (or ought to be, even where they haven't yet been held unconstitutional), it's time to take a closer look at how the remaining categories of predicate offenses are defined.

The following chart tracks and compares the language of commonly invoked predicate offenses. It is now accessible in pdf format via the link on step one of our Analyzing Prior Convictions flowchart. Or simply click the pages of the below images to embiggen them here.

Tuesday, December 8, 2015

When "I Didn't Do It" Means He Didn't Do It

2000: "First of all, I want to say I didn't do it." Floyd Bledsoe, before being sentenced to life in prison for first-degree murder.

2002: "Finding no error, we affirm." State v. Bledsoe, 272 Kan. 1350, 1351 (2002) (affirming Floyd Bledsoe's murder conviction on direct appeal).

2007: "[O]ur confidence in the jury's verdict is not undermined." Bledsoe v. State, 283 Kan. 81, 91 (2007) (affirming district court's denial of Floyd Bledsoe's K.S.A. 60-1507 motion).

2015: "Going back to milking cows . . . something peaceful and quiet for a while." Floyd Bledsoe, in answer to a reporter's question about what he's going to do now that his 15-year-old murder conviction has finally been vacated.

And thus we are reminded, once again, that it happens: Innocent people are convicted. Wrongful convictions are affirmed. And sometimes it takes years---not to mention DNA tests and a guilty brother's confessional suicide note---before some semblance of justice is served.

Peace be with you indeed, Floyd Bledsoe.

Sunday, December 6, 2015

Into the Morass: The Flowchart

Buckle your seatbelts, it's flowchart time! Here's how this is going to work: The below flowchart is now accessible (and, I promise, more legible) in pdf format via a link in the middle of the home page. The chart is designed to help you walk through the steps of determining when a client's prior conviction qualifies as a predicate crime. Over time, there will be links within each step of the flowchart taking you to a more detailed explanation of that analytical step. And yes, the linked materials will be bookmarked as well. Each time a new link is added, the content of the link will be discussed here as part of our "Into the Morass" series (though perhaps in an abbreviated form). Since this is a developing area of law, the content within the links may change over time. Use the flowchart online to be sure you have the most up-to-date version.

Today's featured links (which work on the pdf, but not on the image below) are merely to the title cases themselves, which are always worth another read.

May the Flow be with you!

Thursday, December 3, 2015

"Playing the role of a potted plant, defense counsel offered no objection"

Ho hum, another day, another guilty client, another plea hearing. May as well sleep through it---am I right?

Not on this Court's watch. If you think plea and sentencing hearings are no more attention-worthy than those pre-flight safety speeches we all tune out, the First Circuit wants you to think again. You certainly don't want to be at the receiving end of this appellate spanking:
Playing the role of a potted plant, defense counsel offered no objection throughout the proceedings, and then on appeal filed an Anders brief, which we rejected, ordering that the appeal proceed with counsel.
United States v. Figueroa-Ocasio, 805 F.3d 360, 367 (1st Cir. 2015). And guess what? The Circuit was right to demand counseled briefing. In fact, the plea colloquy and sentencing hearing were so flawed in this case of an ESL defendant who was "apparently and unwittingly telling the court that he was very likely not guilty of the charge, with no evidence to the contrary" that the Court ultimately reversed the defendant's convictions and sentence:
The district court in this case accepted the defendant's straight plea of guilty to firearms charges without taking all the steps necessary to determining that the plea was entered intelligently and knowingly. The district court also employed an erroneous illustration of the requisite mens rea in order to defuse the defendant's suggestion that he lacked the knowledge needed to support a conviction, thereby leaving us with a record in which it appears that a person pleaded guilty because he was misinformed about the elements of the crime. Finally, the district court also committed procedural error at sentencing by incorrectly calculating the applicable sentencing guideline range. We therefore vacate the conviction and the sentence and remand for proper consideration of the proposed plea and such further proceedings as are then called for.
United States v. Figueroa-Ocasio, 805 F.3d 360, 362 (1st Cir. 2015).

So wake up and smell the colloquy! And if it stinks, appeal it.

Sunday, November 29, 2015

Relationship Between Arrests and ADA Still an Open Question

As readers may recall, earlier this year the Supreme Court dismissed as improvidently granted the question whether police officers are obligated to provide reasonable accommodations to mentally ill suspects during arrests.

Last week the Tenth Circuit sidestepped that same question, as well as a related question, in J.H. v. Bernalillo County. J.H. was an 11-year-old special-needs student who was arrested, handcuffed, and taken to juvenile detention when an officer saw her kick a teacher. Her mother sued the officer and the county, claiming violations of both the Fourth Amendment and the Americans with Disabilities Act. The district court granted summary judgment in favor of the defendants, and the Tenth Circuit affirmed. Two points of note for counsel challenging the arrest of a disabled client:

First, the Court holds that an officer may violate the ADA if the officer arrests a suspect "by reason of a disability," and notes that it has yet to decide the viability of an ADA-based wrongful-arrest claim. The Court declines to reach this question under the facts of the case.

Second, the Court assumes for the sake of argument that "accommodations may be necessary when disabled individuals are arrested," again noting that it has yet to decide this issue, and again declining to reach it under the facts of the case.

By the way, if you find the arrest and handcuffing of an 11-year-old special-needs student for kicking a teacher disturbing, J.H. reminds us that age does not exempt a child from arrest, even for misdemeanor offenses. In the course of finding the arrest reasonable and the handcuffs not excessive, the Court reminds us of two other unpleasant cases approving the arrests of children. One involved the arrest, search, and handcuffing of a 12-year-old girl for eating a single French fry in a subway station, while another involved the arrest and "twist-lock" of a 9-year-old boy suspected of stealing an iPad.

Tuesday, November 24, 2015

The Return of Issues Pending

After a brief hiatus (mea culpa), the Issues Pending document has been updated and is back on track. What is the Issues Pending document, you ask? It is a listing by category of all issues currently pending on appeal in criminal cases in the Tenth Circuit. You can open the document by clicking on the link in the middle of the home page.

Want to know if anyone else has challenged the classification of a prior Oklahoma failure-to-stop-at-a-roadblock conviction as a crime of violence for career-offender purposes? Click on the bookmark for USSG § 4B1.2, or search for "career-offender" or "roadblock." Use the bookmarks, use the find function, or just poke around randomly to learn what's in store for us from the Tenth Circuit in the near future. You might find the information helpful for issue spotting, or to set up your own case in either the district court or on appeal to take advantage of appellate trends.

Sunday, November 22, 2015

Into the Morass: Things Are Getting Weird

The residual clause of the Armed Career Criminal Act is unconstitutionally vague.

The residual clause of the Career Offender Guideline is unconstitutionally vague.

And the demise of these clauses continues to echo.

A federal defendant in Utah, for example, pled guilty to a robbery. He had two prior convictions for robbery. Bad news, right? As a (presumed) career offender, he was facing a guideline range of 151-188 months. To mitigate the damage, he worked out a binding plea to 96 months. Good result, or so it seemed.

But then the Supreme Court decided Johnson. And our Utah defendant moved to withdraw his plea, arguing that it was entered on a mistaken understanding that he was subject to the career-offender enhancement. Absent that enhancement, the defendant's guideline range appeared to be only 37-46 months. Withdrawing the plea would allow him to argue for a sentence within that range. The Court granted the motion, reasoning that "to the extent certain prior robbery convictions could be categorized as crimes of violence pursuant to § 4B1.2's residual clause, there now exists a compelling argument that any enhancement on this basis is unconstitutional."

In Johnson, the Supreme Court called the ACCA's residual clause "a judicial morass that defies systemic solution." We believe that the morass has only just begun to clear. Brooks, Descamps, and Johnson have created a sea change in the analysis of predicate convictions for federal sentencing purposes. This will be the first in a series of posts examining that change, and how to make the most of it for our clients. And yes, there will be a flowchart.

As we travel down this new road, let's make this our first rule of predicate convictions:

Question Everything.

Wednesday, November 18, 2015

Guideline sentence = loss

"A guideline sentence is a loss." One of the Defenders testified to this (paraphrased) before the Cardone Commission this week. There are always exceptions. But the general principle is spot on -- if we cannot do better than the guideline at sentencing, we probably lost.

Over half of the 75,000-plus federal sentences last year were below the calculated guideline range, according to the Sentencing Commission's Overview of Federal Criminal Cases: FY 2014. Some were cooperation or fast track cases; at least 40% are not.

As for the trial penalty: almost half of the defendants who lost a trial still received a below-guideline sentence.

Immigration and drug cases each took about 30%  of the sentencing real estate. Over 50% of people sentenced in federal court last year were Hispanic. Yet Hispanics account for only about 17% of the United States population.

Crack cocaine is still draws the harshest drug penalties, with an average sentence of 93 months. This has decreased over the last few years, but the racial disparity persists. For the most harshly penalized drug, 82.9% of those convicted were black.

More numbers: almost 20% of drug cases involved a mitigating role adjustment. Only 5% of crack cocaine cases received an adjustment.

The guidelines are flawed in many ways, from  inception. But now courts are free to disagree with the guidelines as a matter of policy, independent from the individual case. Many guidelines are not empirically based (2D1.1 drug valuation) or antiquated (2G2.2(b)(6), adding two levels for using a computer to possess child porn). There are many reasons that a guideline sentence does not fit within the 3553(a) factors.

The Court has said that "the Guidelines should be the starting point and the initial benchmark." But the starting point should not also be the ending point.

Tuesday, November 17, 2015

The Guidelines = Mass Incarceration

Judge Adelman, District of Wisconsin, has written an article (along with law clerk Jon Deitrich) entitled How Federal Judges Contribute to Mass Incarceration and What They Can Do About It. Here are the Judge's primary observations:

-- By placing too much emphasis on prison rather than alternative sentences, the guidelines contribute to mass incarceration. The number of prison-only sentences has increased from 83.3% in FY 2003 to 87% in FY 2014.

-- Judges are excessively attached to the guidelines "despite their deep flaws" and even after they were made advisory, in part because of "anchoring." Anchoring ties the court's analysis to the guideline range. Even if the court rejects that number, it still influences the decision. The guidelines "put a number on a question that is otherwise quite subjective."

-- Mass incarceration could be reduced if judges were less deferential to the guidelines and less focused on prison. Courts need to refocus on probation, determining first whether prison is even appropriate in a particular case. Probation can be more likely to satisfy the demands of section 3553(a)

To read more on the subject, and to bolster arguments for the court to step away from the guidelines, read Frank Bowman,Dead Law Walking: The Surprising Tenacity of the Federal Sentencing Guidelines51 Hous. L.Rev. 1227 (2014).

Tuesday, November 10, 2015

Marihuana Equivalency Spreadsheets

But first, a quick correction: Earlier this week, I reported a cert. grant in a Kansas case I mistakenly identified as United States v. Johnson. The case is in fact Nichols v. United States, as the blog post now reflects.

And now back to our regularly scheduled programming: Marihuana with an "H."

movie poster
When a drug case involves multiple controlled substances, the base offense level is calculated using U.S.S.G. 2D1.1, Application Note 8(B). This guideline sets a marihuana equivalent for each gram of the commonly encountered controlled substances. The sum of the marihuana equivalents is then used to determine the base offense level under the drug quantity table found at 2D1.1(c).

Last year we published our Marihuana Equivalency Spreadsheet, which calculated marihuana equivalents for common drugs based on the Nov 1, 2014 Sentencing Guidelines section 2D1.1, Application Note 8(B), and provided a base offense level based on the total quantity of marihuana equivalents.

In 2014, the DEA reclassified hydrocodone from Schedule III to a Schedule II controlled substance.  This change was incorporated into 2D1.1 by U.S.S.G. Amendment 793, which changed the marihuana equivalency ratio for hydrocodone (actual) to 6,600 grams of marihuana for each gram of actual hydrocodone.  We updated our Marihuana Equivalency spreadsheet to reflect this change. Our revised Marihuana Equivalency Spreadsheet now calculates marihuana equivalents based on the Nov 1, 2015 Sentencing Guidelines.

The Marihuana Equivalency spreadsheets do not account for the reduction in offense level when the accused receives a mitigating role as provided in U.S.S.G. 2D1.1(a)(5), or any applicable reduction for acceptance of responsibility as allowed by U.S.S.G. 3E1.1. The spreadsheets also do not account for enhancements for specific offense characteristics found at 2D1.1(b), or enhancements from Chapter 3 or Chapter 4, Part B of the Guidelines. Finally, our spreadsheets do not apply to offenses covered by U.S.S.G. 2D1.11, Unlawfully Distributing, Importing, Exporting or Possessing a Listed Chemical; Attempt or Conspiracy.

Both spreadsheets are available for download on our CJA website. Thanks to David Freund for this valuable tool and the above explanation.

Sunday, November 8, 2015

SCOTUS grants cert in SORNA case from Kansas

Last Friday, the United States Supreme Court granted certiorari in United States v. Nichols, a federal SORNA case arising from Kansas. The question of statutory interpretation at issue is whether a sex offender who moves to a foreign jurisdiction in which SORNA registration is not required must report his move (i.e., update his registration) in the jurisdiction in which he previously resided and registered. The facts---and the circuit split that led to the cert. grant---were succinctly stated in the petition for certiorari:

Two men lived on opposite sides of the Missouri River in the Kansas City Metropolitan area, one in Missouri within the Eighth Circuit, the other in Kansas within the Tenth Circuit. Both men . . . were required to register under SORNA. Both men traveled from their homes to the Kansas City International Airport, flew to the same foreign country to reside, and thereafter did not update their registrations in the jurisdictions they had left. On these facts, the Eighth Circuit ruled in United States v. Lunsford, 725 F.3d 859 (8th Cir. 2013), that the failure to update a registration does not violate SORNA. The Tenth Circuit came to the opposite conclusion in Petitioner’s case, on the basis of its earlier decision in United States v. Murphy, 664 F.3d 798 (10th Cir. 2011).

The SCOTUSblog case page is up and running. Watch for arguments in early 2016.

Monday, November 2, 2015

Tenth Circuit: Career Offender Residual Clause Void for Vagueness

Because the Guidelines are the beginning of all sentencing determinations, and in light of the “unavoidable uncertainty and arbitrariness of adjudication under the residual clause,” Johnson, 135 S. Ct. at 2562, we hold that the residual clause of § 4B1.2(a)(2) is void for vagueness.

United States v. Madrid, No. 14-2159 (10th Cir. Nov. 2, 2015) (holding further that Mr. Madrid's prior statutory-rape conviction from Texas was neither a force-clause offense nor an enumerated forcible sex offense).

Sunday, November 1, 2015

Mandatory Minimums: Harder to trigger than you thought

We now know that facts increasing a mandatory-minimum sentence must be found by a jury or admitted by the defendant.1 But exactly what facts trigger the mandatory minimums in 21 U.S.C. § 841(b)? The statute itself defines the triggering event simply as "a violation [of the distribution/manufacturing statute] involving" X amount of drugs.

Echoing this language, the Tenth Circuit’s pattern jury instruction for controlled-substance conspiracies includes an optional fifth element that requires the jury to find that "the overall scope of the conspiracy involved at least [name amount] of [name controlled substance]."2 Is that conspiracy-wide finding sufficient to trigger a mandatory minimum? Or must the amount of drugs be more specifically attributed to the defendant?

In conspiracy cases addressing this question, there appear to be three approaches on the table:

Proof required to trigger mandatory minimum


That X amount was involved in

the overall scope of the conspiracy.

10th Circuit Pattern Jury Instruction 2.87 (conspiracy instruction, fifth element).
That X amount was involved in
the overall scope of the conspiracy, and
that amount was reasonably foreseeable to the defendant.

Pinkerton v. United States, 328 U.S. 640 (1946).
That X amount was involved in
the scope of the criminal activity
that the defendant jointly undertook, and
that amount was reasonably foreseeable to the defendant.

U.S.S.G. § 1B1.3(a)(1)(B) (relevant conduct guideline).

Many if not most circuits have rejected the conspiracy-wide approach.3 This makes perfect sense, as Congress’s purpose in sentencing conspirators under § 841(b)4 was "to synchronize the penalties for conspiracies and their underlying offenses"—a purpose that holding a conspirator responsible for the entire conspiracy absent at least a Pinkerton foreseeability finding would defeat.5

Matters get a little confusing, though, when the appellate courts tackle the question of just how individualized the proof triggering 841(b)’s mandatory minimums must be. Some explicitly adopt Pinkerton’s simple foreseeability standard;6 others adopt a guideline-styled attribution standard using the language in U.S.S.G. § 1B1.3(a)(1)(B);7 still others appear to equate these standards.8

But none of this should be unclear anymore in the Tenth Circuit, which explicitly adopted a guideline-styled attribution standard in a pair of cases the Court has dubbed Biglow I and Biglow II.

Defendant Biglow was convicted by a jury of a conspiracy "involving" 500 grams or more of cocaine. In Biglow I, the Tenth Circuit vacated Defendant Biglow’s conspiracy sentence and remanded the case for resentencing because, as the government conceded, the district court failed to make "particularized findings regarding drug quantity" before sentencing Biglow to the mandatory minimum for a 500-gram cocaine conspiracy.9 Borrowing language from § 1B1.3, the Court explained that Biglow was only accountable at sentencing "for all quantities of contraband with which he was directly involved and . . . all reasonably foreseeable quantities of contraband that were within the scope of the criminal activity that he jointly undertook."10

On remand, the district court applied this standard and found that Biglow was individually accountable for only 192 grams of cocaine. But the district court believed it was nonetheless constrained by the jury’s 500-gram conspiracy verdict to re-impose the mandatory minimum sentence.

The Tenth Circuit vacated the sentence again in Biglow II, making it clear that (1) a verdict as to overall conspiracy amounts is not enough to trigger § 841(b), and (2) a guideline-styled attribution standard applies:
As we held in Biglow I, a drug-conspiracy conviction alone is insufficient to make an individual conspirator responsible for the entire quantity of drugs for which the conspiracy was responsible. Instead, these defendants may only be punished for the amount of controlled substances that can be "attributed" to them personally, as opposed to the conspiracy generally. . . . To determine this amount, the district court must hold the defendant "accountable" for his "relevant conduct," which "includes all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant and all reasonably foreseeable acts and omissions of others in furtherance of [a] jointly undertaken criminal activity." . . . This "includes any controlled substance that was handled by another member of the conspiracy" if it was "in furtherance of the jointly undertaken criminal activity" and "reasonably foreseeable in connection with that criminal activity." . . . In short, a defendant is "accountable for all quantities of contraband with which he was directly involved and . . . all reasonably foreseeable quantities of contraband that were within the scope of the criminal activity that he jointly undertook." . . . .

The attributed drug quantity will then be used both to determine a conspirator’s appropriate guidelines range and to determine whether a statutory mandatory penalty associated with the underlying object offense of the conspiracy applies to an individual conspirator . . . .11
A few observations about Biglow and § 841(b):

The guideline-styled attribution standard is more protective than the Pinkerton standard. The plain language of the relevant-conduct guideline—which limits the defendant’s responsibility not only to foreseeable acts of coconspirators, but also to those acts which fall within the scope of the criminal activity jointly undertaken by the defendant—attributes less culpability to the defendant than does Pinkerton. The distinction between the two is even more apparent with the clarifying amendments to § 3B1.1(a)(B) that are now effective.

Indeed, the guidelines themselves currently caution that "the scope of the criminal activity jointly undertaken by the defendant . . . is not necessarily the same as the scope of the entire conspiracy."12 And courts comparing the guideline standard to Pinkerton have observed that "[c]onspiracy liability, as defined in Pinkerton . . . is generally much broader than jointly undertaken criminal activity under § 1B1.3."13

Adopting a guideline-styled attribution standard is consistent with the legislative history of § 841(b). As other courts have noted, § 841(b) and the guidelines were both developed in the 1980s and have grown up hand-in-hand; they thus should be interpreted consistent with one another: the guidelines were created pursuant to the Sentencing Reform Act of 1984, 28 U.S.C.A. §§ 991-998 (West Supp. 1993) and that the individual guidelines, including the reasonable foreseeability test as set forth in the relevant conduct section, have been accepted by Congress. Thus, two distinct congressionally approved sentencing schemes, the mandatory minimum approach and the sentencing guidelines, are presently in place, two schemes that should be reconciled to the extent legitimate and practical.14
Adopting a guideline-styled attribution standard is consistent with the rule of lenity. Given the ambiguity of § 841(b)’s "involving" language (evident in the confusion over what proof is necessary to trigger the statute), invoking the rule of lenity to resolve the question of what standard applies is appropriate.15

Lingering questions:

Is guideline-styled attribution required to trigger the mandatory minimums for substantive Pinkerton convictions?

Is guideline-styled attribution required to trigger an increase in the statutory maximum?

What kind of jury instruction will satisfy a guideline-styled attribution requirement?

What kind of plea colloquy will satisfy a guideline-styled attribution requirement?


1. Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 2151 (2013).

2. Tenth Circuit Pattern Jury Instruction 2.87.

3. See, e.g., United States v. Haines, ___ F.3d ___, 2015 WL 6080523 at *22 (5th Cir. Oct. 15, 2015) ("for purposes of statutory minimums at sentencing, the relevant quantity is the quantity attributable to the individual defendant").

4. See 21 U.S.C. § 846.

5. See United States v. Martinez, 987 F.2d 920, 925 (2d Cir. 1993).

6. See United States v. Rodriguez, 67 F.3d 1312, 1324 (7th Cir. 1995) ("while our analysis resembles the ‘relevant conduct’ inquiry under U.S.S.G. § 1B1.3, we actually proceed under Pinkerton").

7. See United States v. Swiney, 203 F.3d 397, 404 (6th Cir. 2000) ("We therefore hold that Pinkerton principles, as articulated in the relevant conduct guideline, U.S.S.G. § 1B1.3(a)(1)(B), determine whether a defendant convicted under 21 U.S.C. § 846 is subject to the penalty set forth in 21 U.S.C. § 841(b)(1)(c)") (emphasis added).

8. See United States v. Mendez, 472 Fed. Appx. 214, 215 (4th Cir. 2012) ("Pursuant to Pinkerton, a coconspirator is liable for the amount of drugs . . . other members of the conspiracy were involved in whose actions were both reasonably foreseeable and in furtherance of the jointly undertaken criminal activity").

9. United States v. Biglow, 554 Fed. Appx. 679, 684 (10th Cir. 2014).

10. Id.

11. United States v. Biglow, ___ Fed. Appx. ___, 2015 WL 3559216 at * 2 (10th Cir. June 9, 2015) (internal quotations and citations omitted).

12. U.S.S.G. § 1B1.3 App. Note 2.

13. United States v. Davison, 761 F.3d 683, 686 (7th Cir. 2014); see also United States v. Soto-Piedra, 525 F.3d 527, 531 (7th Cir. 2008) ("Foreseeability is a limitation on liability for conduct of others in furtherance of a jointly undertaken activity but is irrelevant when there is no jointly undertaken activity."); United States v. Swiney, 203 F.3d 397, 404 (6th Cir. 2000) ("it is clear that the Sentencing Guidelines have modified the Pinkerton theory of liability so as to harmonize it with the Guidelines’ goal of sentencing a defendant according to the seriousness of the actual conduct of the defendant and his accomplices").

14. United States v. Irvin, 2 F.3d 72, 78 (4th Cir. 1993).

15. See United States v. Manatau, 647 F.3d 1048, 1055 (10th Cir. 2011) ("the rule of lenity teaches that if, after ‘seizing every thing from which aid can be derived’ an ambiguity still persists . . . courts should interpret federal criminal statutes . . . to avoid an increase in the penalty prescribed for the offense").

Monday, October 26, 2015

Arrest invalid due to “readily available exculpatory evidence”

Say you are a new county sheriff’s officer, just two months into your job. While on patrol, you notice a family in this truck:

The father waves at you as he drives by. He has done nothing illegal, and there is nothing unusual about the truck, but, what the heck, you follow them. You enter their license number into NCIC (off by one digit, but you don’t know that), and get a  hit for a stolen car described as looking like this:

Failing to notice the “considerable mismatch” between the stolen car and the truck in front of you, you commence a felony stop. During this stop, a family of five (including two teenagers and a nine-year-old) are ordered out of the truck at gunpoint, checked for weapons, and made to lie prone on the highway. Traffic is stopped in both directions until each family member is cuffed and placed in a separate squad car.

This, the Tenth Circuit says in an opinion granting summary judgment on the family’s ' 1983 claim against the officer who initiated the stop, was an unlawful arrest. The officer acted unreasonably in two ways. First, the differences between the family’s truck and the car reported stolen in the NCIC report “are not minor; they are material and obvious” (emphasis the Tenth’s). “Moreover, in determining whether there is probable cause, officers are charged with knowledge of any ‘readily available exculpatory evidence’ that they unreasonably fail to ascertain.” The officer’s failure to ascertain that evidence was unreasonable here:

In this case, such readily available exculpatory evidence included the stolen vehicle description already on Fuentes’s computer screen before the arrest, which did not match the Marescas’ truck in style, make, model, year, color, license plate number, or registration status; and the corrective information that dispatch presumably would have provided had Fuentes waited for verification, in accordance with her training. These steps were not taken. See Baptiste, 147 F.3d at 1257 (“A police officer may not close her or his eyes to facts that would help clarify the circumstances of an arrest.”) (quoting BeVier v. Hucal, 806 F.2d 123, 128 (7th Cir. 1986)); see also Phelan v. Village of Lyons, 531 F.3d 484, 488 (7th Cir. 2008). Even after stopping the Marescas, Fuentes could have gleaned readily available exculpatory evidence by interviewing the Marescas, considering the Marescas’ specific, repeated requests to recheck their license plate and the fact that all of the Marescas were fully compliant and showed no indicia of any risk to officer safety, and recognizing the commonsense implications of the fact that the truck’s passengers were a family of five (plus the family dog) on a state highway during the daytime.

Maresca v. Bernadillo County, et al., No. 14-2163, slip op. at 16-17 (10th Cir. Oct. 22, 2015).

The Tenth Circuit hasn’t invoked “readily available exculpatory evidence” to invalidate an arrest in a long time (since Baptiste was decided in 1998). It’s good to see the concept still has legs.

Thursday, October 22, 2015


On November 1, the courts will be using a new Statement of Reasons form at sentencing. This form is intended, in part, to explain the reasons for the selected sentence.

The Commission, in an effort to remain relevant, expanded the form to track courts' bases for variances. There is still a section for departures (those still exist in the 10th Circuit) but also a section for 3553(a) and "other" reasons. These include:

  • Lack of youthful guidance;
  • pre-sentence rehabilitation;
  • issues with criminal history;
  • non-violent offender;
  • cooperation with the government without a 5K;
  • waiver of appeal; and
  • policy disagreement with the guidelines (citing Kimbrough).
Most of these are good options, and our sentencing arguments can be tailored to the factors.

But the last option is incredible, and incredibly bad: "In the event the guideline determination(s) made in this case are found to be incorrect, the court would impose a sentence identical to that imposed in this case."

We have to think about this. Comments welcome.

-- Melody

Thursday, October 15, 2015

Strickland in the age of card catalogues

The High Court has already issued its first opinion this term, in Maryland v. Kulbicki, a per curiam summary reversal of state habeas relief for a Maryland police officer convicted of first-degree murder. The Court of Appeals of Maryland had held that Mr. Kulbicki’s trial lawyers were ineffective 20 years ago when they failed to challenge the state’s Comparative Bullet Lead Analysis evidence. Specifically, the lawyers failed to learn that the State’s CBLA expert had co-authored a report that “presaged the flaws in CBLA”---a forensic technique that has since been roundly discredited and abandoned. The Supreme Court reversed the Maryland court's Strickland finding, holding that Mr. Kulbicki’s lawyers were not constitutionally required to predict the demise of CBLA, or, in those pre-Internet days, to stumble across the expert’s report at the local public library:

[T]here is no reason to believe that a diligent search would even have discovered the supposedly crucial report. The Court of Appeals offered a single citation in support of its sweeping statement that the report “was available” to Kulbicki’s counsel in 1995—a Government Printing Office Web page accessed by the Court of Appeals, apparently conducting its own Internet research nearly two decades after the trial . . . . The Web page indicates that a compilation of forensic studies that included the report was “distributed to various public libraries in 1994.” . . . . But which ones? And in an era of card catalogues, not a worldwide web, what efforts would counsel have had to expend to find the compilation? And had they found it, would counsel really have combed through the entire compilation, and have identified the one (of many) findings in one of the reports, the disregard of which counsel would have recognized to be “at odds with the scientific method”?

Two points of note in Kulbicki:

First, the Court appears to chastise the Maryland appellate court for “conducting its own Internet research.” This raises an interesting question about when it is appropriate for appellate courts to base decisions on facts the courts themselves unearth via Internet research (or even brick-and-mortar research, but who are we kidding?), rather than limiting themselves to the facts developed below. This question was recently addressed in a Seventh Circuit civil-rights case, in an opinion well worth reading (spoiler alert: Judge Posner supports such judicial research, especially in pro se prisoner cases where “[i]t is heartless to make a fetish of adversary procedure if by doing so feeble evidence is credited because the opponent has no practical access to offsetting evidence”).

Second, while Mr. Kulbicki’s lawyers may be off the hook for failing to exhume an obscure expert report in 1995---the “era of card catalogues”---where does that leave defense lawyers practicing in the age of the worldwide web? By contrasting these two very different worlds, Kulbicki points to the answer: The easier it is to conduct computer research and investigation, the higher the judicial expectations are (and should be) that we will indeed find those exculpatory needles in the online haystack. Happy Googling!

-- Paige Nichols

Tuesday, October 13, 2015

The Tenth Circuit’s failure to scrutinize 404(b) evidence in drug cases

The Tenth Circuit’s dismissive attitude toward challenges to 404(b) evidence in drug cases is well illustrated here: “Our court has time and again held that past drug-related activity is admissible other-acts evidence under Rule 404(b) to prove, inter alia, that the defendant had the knowledge or intent necessary to commit the crimes charged.” United States v. Watson, 766 F.3d 1219, 1237 (10th Cir. 2014). Things are different in the Seventh Circuit: “We have recently cautioned that district courts have too readily admitted prior bad acts evidence in drug cases.” United States v. Richards, 719 F.3d 746, 759 (7th Cir. 2013); see also United States v. Miller, 673 F.3d 688, 698 (7th Cir. 2012) (“There may be enough cases affirming such admissions [of prior drug-dealing crimes], however, that in cases charging specific-intent drug crimes, the admission of prior drug convictions may have come to seem almost automatic. It is not. We need to recall first principles.”). Interestingly, although Richards found that the other crimes evidence was admissible, the Seventh Circuit nonetheless reversed because during closing argument the prosecutor repeatedly described the defendant as a “drug dealer” and “drug trafficker,” violating the rule prohibiting “arguing to a jury that it should convict a defendant based on the defendant’s propensity to commit a crime.” Id. at 764 (quotation omitted).

But outside of drug cases, the Tenth Circuit has displayed a more enlightened attitude. In United States v. Commanche, 577 F.3d 1261, 1266 (10th Cir. 2009), the Court distinguished proper from improper use of 404(b) evidence. That is, “[i]n some instances, the permissible purposes of 404(b) evidence are logically independent from the impermissible purpose of demonstrating conformity with a character trait.Id. But

[i]n other cases, bad act evidence bears on a permissible purpose only if a jury first concludes that the defendant likely acted in conformity with a particular character trait. Consider a case in which a defendant is accused of murdering his wife using his car but claims that he thought that car was in reverse when it was actually in drive. To demonstrate the absence of mistake, the government attempts to elicit testimony that the defendant twice previously slapped his wife. In such a case, the disparate circumstances between the prior instances and the vehicular killing negate any possibility of directly using the prior instances to show lack of mistake. Rather, a jury could use this evidence to conclude that the defendant was not mistaken as to the status of his transmission only if it first concluded that he had a propensity for violence against his wife and this alleged murder was another such incident. Rule 404(b) does not allow evidence of other bad acts in such a case. If that defendant is to be convicted of murder, it must be based on his allegedly murderous act and not his bad character. We hold that evidence is admissible under Rule 404(b) only if it is relevant for a permissible purpose and that relevance does not depend on a defendant likely acting in conformity with an alleged character trait.

Id. at 1266-67. The Seventh Circuit seems to apply this same degree of scrutiny in drug cases:

How, exactly, does Miller's prior drug dealing conviction in 2000 suggest that he intended to deal drugs in 2008? When the question is framed this way, the answer becomes obvious, even though implicit: “He intended to do it before, ladies and gentlemen, so he must have intended to do it again.” That is precisely the forbidden propensity inference.

Miller, 673 F.3d at 699. We need to find a way to convince our courts to apply this common-sense reasoning in drug cases.

 -- Tom Bartee

Thursday, October 1, 2015


Three months ago, SCOTUS ruled that Oklahoma's method of execution, a questionably ineffective drug cocktail that did not cause the person to become insensate to pain before the fatal drug was administered, did not violate the Eighth Amendment. That was Glossip v. Gross.

Back to death row for Richard Glossip, who was scheduled to be executed tonight. But he was granted a reprieve because . . . Oklahoma had ordered the wrong drugs.

Dissenting in Glossip was Justice Breyer, who eloquently dissected the pro-death arguments. He then denounced the death penalty as unconstitutional.

This term, the Court has granted cert in five capital cases. The Carr and Gleason cases are from Kansas. Hurst v. Florida is also on the docket, and the wide-spread belief is that the deeply-divided Court will declare the Florida scheme unconstitutional.    

Monday, September 28, 2015

Remaining silent

It happens -- a client asks for a new lawyer, says things to the court that perhaps make the lawyer look bad. Like an incompetent, uncaring, inattentive lawyer. And the lawyer may react defensively, denying the accusations even at the cost of the client's credibility. After all, that seems unfair to let the accusations stand without a public answer.

But that response may, even setting aside the ethical implications, render counsel constitutionally ineffective. Adverse positions between the attorney and client may present an actual conflict of interest that allows a presumption of prejudice.

Lopez v. Scully, a Second Circuit case, lays out the conflict. There, Mr. Lopez alleged that counsel had coerced him to plead guilty. “At that point, the attorney had an actual conflict of interest: to argue in favor of his client's motion would require admitting serious ethical violations and possibly subject him to liability for malpractice; on the other hand, any contention by counsel that defendant's allegations were not true would contradict his client. As it happened, the attorney put his own interests ahead of his client's by denying the truth of Lopez's allegations and thereby attacking his own client's credibility.” The Second Circuit presumed prejudice because there was an actual conflict that arose when counsel "undermined his client's credibility moments earlier by denying the truth of the allegations in the pro se motion."

And so concluded the Lopez court: “Given this abdication of the attorney's role as advocate when the judge had the discretion to impose a lower sentence and arguable grounds for leniency existed, we believe that Lopez has shown that an actual conflict of interest adversely affected his attorney's performance in violation of his Sixth Amendment right to effective assistance of counsel.

The Tenth Circuit came to a similar conclusion in US v. Collins, and the Seventh Circuit did so in US v. Morris -- "Morris has shown that an actual conflict of interest . . . [his attorney] would seem to have a self-interest in protecting himself from a malpractice claim. However, Morris's argument was predicated on [the lawyer's] purportedly false advice . . . . In situations such as Morris's, courts have presumed prejudice.

The ethical implications are also damning if not handled carefully. But that's for another post.

Tuesday, September 22, 2015

Brooks 2.0

A Kansas presumptive probation sentence might not qualify as a federal felony, regardless of whether the underlying state prison sentence exceeded 12 months. A federal felony is generally defined as a conviction punishable by a term of imprisonment exceeding one year. A presumptive probation sentence is not, absent a dispositional departure, subject to imprisonment for any term.

Kansas sentences are controlled exclusively by the sentencing grid. Unlike the federal statutory ranges that fence the advisory guidelines, the state grids are the statutory range in Kansas. If the projected sentence falls within a presumptive probation box – as opposed to a presumptive prison or “border box” where the court can go either way – the judge cannot impose a prison sentence (caveat below). If the state court could not have imposed a prison sentence, then the conviction is not one that carries a “term of imprisonment exceeding one year.”

Key question: What options did the state court judge have at the moment the defendant, with her recidivist record, appeared for sentencing? If prison was not an option, then it was not a conviction punishable by a term of imprisonment exceeding one year. 

Not questions: What sentence was actually imposed? What sentence could another person could have received? What could the sentence theoretically be if the prosecution had proceeded differently?

Brooks 2.0: The reasoning is the same as in US v. Brooks, decided in 2014. There, the Tenth Circuit said that a Kansas sentence of imprisonment that could not have exceeded 12 months was not a felony, as defined by federal law. “[I]n determining whether a state offense was punishable by a certain amount of imprisonment, the maximum amount of prison time a particular defendant could have received controls, rather than the amount of time the worst imaginable recidivist could have received.” It follows from Brooks that when the defendant stands before the court in a presumptive probation box, and a prison sentence cannot be imposed, it is not a conviction punishable by a term of imprisonment exceeding one year. 

Caveat: In a Brooks scenario, if the state prosecution actually sought a durational departure – that is, a sentence that exceeded the high number in the grid box – then that could have allowed the state court to sentence in excess of 12 months. In that event, the defendant would be back in federal-felony land. Here, the question is not a durational departure, but a dispositional departure. The state prosecution can, in some circumstances, pursue a dispositional departure, that is, a prison sentence rather than the presumptive probation that the grid calls for. But if those procedures were not followed, and the court only had discretion to impose a non-custodial sentence, it is not a conviction punishable by imprisonment. Other conditions, such as mandatory drug treatment, may complicate the argument, but it should still prevail.

Other examples of complications arise in US v. Romero-Leon, an unpublished decision from the Tenth Circuit that applied Brooks to a New Mexico prior conviction. There, the defendant was not subject to more than ten years imprisonment on a prior New Mexico drug conviction, thus the state conviction could not qualify as an ACCA predicate. The government raised several arguments about how, under the New Mexico system, things could have turned out differently. All were rejected. Remember, from Carachuri-Rosendo, the Supreme Court rejected federal back-peddling on state proceedings, “Were we to permit a federal immigration judge to apply his own recidivist enhancement after the fact . . . we would denigrate the independent judgment of state prosecutors to execute the laws of those sovereigns."

The Result: A presumptive probation sentence might not qualify as an element of a felon-in-possession charge or as an aggravated felony for illegal reentry purposes. It may not support a statutory sentence enhancement like ACCA or an 851 increase. It may not increase base offense levels (2K2.1) or trigger the career offender guideline (4B1.1).

It is extremely important to check and double-check your client’s criminal history. Presumptive probation covers a fair amount of landscape on the grids, both drug and non-drug.

Reminder: The District of Kansas Fall CLE (Oct 8 in Wichita, Oct 9 in Lawrence) is all about predicate offenses. A whole day of nothing but predicate offense fun. Well, almost a whole day. Because this is really important stuff, and not always that easy to unpack. See for details. The CLE and lunch are free.

Sunday, September 20, 2015

Inextricably Intertwined

FRE 404(b) evidentiary doctrine is a bit of a mess. Complicating that mess is the government's claim that evidence is “inextricably intertwined” with the offense charged. Here is a recent footnote from a Fourth Circuit decision:

At all events, the intrinsic/extrinsic inquiry has ventured far from where it began. See Milton Hirsch, “ This New–Born Babe an Infant Hercules”: The Doctrine of “Inextricably Intertwined” Evidence in Florida's Drug Wars, 25 Nova L.Rev. 279, 280 (2000) (“[U]ntil about the year 1980, no one thought that evidence of uncharged crimes could be rendered admissible by the simple expedient of describing it as ‘inextricably intertwined’ with 
evidence of the crime or crimes actually pleaded in the indictment.”). As pointed out by the D.C. Circuit, “it cannot be that all evidence tending to prove the crime is part of the crime. If that were so, Rule 404(b) would be a nullity.” United States v. Bowie, 232 F.3d 923, 929 (D.C.Cir.2000). Yet, by characterizing evidence as “intrinsic,” federal courts, including this one, have allowed prosecutors to introduce evidence of uncharged bad acts free from Rule 404(b)'s protections, including limiting jury instructions and advanced notice of the government's intent to introduce the evidence. Fortunately, some courts have begun to recognize the harm caused by granting federal prosecutors such unmitigated leeway. See United States v. Gorman, 613 F.3d 711, 719 (7th Cir.2010) (abandoning the “inextricable intertwinement doctrine” because it “has outlived its usefulness” and “become overused, vague, and quite unhelpful”); United States v. Green, 617 F.3d 233, 248 (3d Cir.2010)(“[T]he inextricably intertwined test is vague, overbroad, and prone to abuse, and we cannot ignore the danger it poses to the vitality of Rule 404(b).”); Bowie, 232 F.3d at 927(“[I]t is hard to see what function this [intrinsic/extrinsic] interpretation of Rule 404(b)performs.”); see also United States v. Irving, 665 F.3d 1184, 1215 (10th Cir.2011) (Hartz, J., concurring) (stating that “the intrinsic/extrinsic dichotomy serves no useful function and consumes unnecessary attorney and judicial time and effort,” and that “the distinction between intrinsic and extrinsic evidence is unclear and confusing, and can lead to substituting conclusions for analysis”).

At bottom, the inextricably intertwined precedent is
 underthought and terrifically vague. If you are gong to trial, keep this footnote in your quiver.

-- Kirk