Wednesday, April 29, 2015

USSC Report: Illegal Reentry

The United States Sentencing Commission just issued a new report on illegal reentry offenses. Reviewing 2013, over 26% of all federal cases reported to the Commission were illegal reentry offenses. 26%. In an implicit criticism of the 16-level increase under USSG 2L1.2, the Commission compared a CHC III defendant with no qualifying predicates to a defendant with one 16-level qualifying conviction: "Thus, a CHC III defendant who receives the 16-level enhancement for a predicate conviction will face a guideline range with a minimum term of imprisonment 23 times higher than the minimum applicable to a CHC III defendant with no predicate convictions."

Other key findings:

(1) the average sentence for illegal reentry offenders was 18 months;

(2) all but two of the 18,498 illegal reentry offenders — including the 40 percent with the most serious criminal histories triggering a statutory maximum penalty of 20 years under 8 U.S.C. § 1326(b)(2) — were sentenced at or below the ten-year statutory maximum under 8 U.S.C. § 1326(b)(1) for offenders with less serious criminal histories (i.e., those without “aggravated felony” convictions);

(3) the rate of within-guideline range sentences was significantly lower among offenders who received 16-level enhancements pursuant to §2L1.2(b)(1)(A) for predicate convictions (31.3%), as compared to the within-range rate for those who received no enhancements under §2L1.2(b) (92.7%);

(4) significant differences in the rates of application of the various enhancements in §2L1.2(b) appeared among the districts where most illegal reentry offenders were prosecuted;

(5) the average illegal reentry offender was deported 3.2 times before his instant illegal reentry prosecution, and over one-third (38.1%) were previously deported after a prior illegal entry or illegal reentry conviction;

(6) 61.9 percent of offenders were convicted of at least one criminal offense after illegally reentering the United States.

(7) 4.7 percent of illegal reentry offenders had no prior convictions and not more than one prior deportation before their instant illegal reentry prosecutions; and

(8) most illegal reentry offenders were apprehended by immigration officials at or near the border.

Most cases were from the five border districts. The report includes stats on fast-track reductions, as well.

-- Melody

Tuesday, April 28, 2015

Tenth Circuit reverses drug-trafficking conviction for insufficient evidence

Last week, in United States v.Washington, No. 14-7017 (April 22, 2015), the Tenth Circuit reversed an Eastern District of Oklahoma conviction for possession of a controlled substance with intent to distribute based on insufficient evidence. The court described the procedural facts for the case as follows:

This appeal grew out of a car trip from Oklahoma City to McAlester, Oklahoma. The driver was the defendant, Mr. Anthony Washington; the passenger was his friend, Mr. Maurice Edwards. The car was a rental borrowed from Mr. Edwards’s mother.

Inside the car were roughly 7.5 kilograms of marijuana and 28 to 29 grams of methamphetamine. Upon discovering the drugs, authorities charged Mr. Washington and Mr. Edwards with (1) possession of controlled substances with intent to distribute and (2) aiding and abetting that offense. The jury found both men guilty, and the court entered a judgment of conviction for possession of controlled substances with intent to distribute.

The Tenth Circuit previously affirmed Mr. Edwards' conviction. But in this appeal, the court held that the evidence was insufficient to link Mr. Washington to the drugs. In doing so, the court reversed Mr. Washington’s conviction and remanded the case to the district court with instructions to dismiss the indictment.  Mr. Washington was represented in the case by Tulsa attorney (and accomplished beekeeper), Neil VanDalsem.

The court explained the pertinent facts as follows:

II. The Drugs

The trunk of the car contained a black duffel bag, which held fourteen bricks of marijuana and a receipt issued to Mr. Edwards. Drugs were also stored in three closed containers found in the car: a red “Cold- Eeze” box, a black zipper bag, and a “Green Tea Extract” bottle.

III. Culpability of Mr. Washington

From the large quantity of marijuana and methamphetamine in the car, the jury could have inferred that one of the two men was going toMcAlester to sell drugs. We have elsewhere held that the jury could have easily tied Mr. Edwards to the drugs. United States v. Edwards, __ F.3d __, No. 14-7028, 2015 WL 1296624, at *5 (10th Cir. Mar. 24, 2015). After all, he had fourteen bricks of marijuana in his duffel bag. But, Mr. Edwards’s culpability might not translate to Mr. Washington’s. In this appeal, we must decide whether the government sufficiently tied Mr. Washington to the drugs.

The court explained that “[i]f [Washington] knew about the drugs and had access to them, he could have been guilty of possession with intent to distribute.” The court also explained that “if Mr. Washington drove Mr. Edwards to McAlester, knowing Mr. Edwards was going to sell the drugs, Mr. Washington might have been guilty of aiding and abetting the possession with intent to distribute.” But under either theory, however, the government had to prove that Mr. Washington had known about the drugs. 
To establish Mr. Washington’s knowledge, the government had to present evidence of a nexus between Mr. Washington and the drugs in the car. There had to be some connection or nexus individually linking Washington to the drugs.  His presence in the car was not enough.

The court examined the facts supporting the government’s theory, namely the smell of marijuana in the car and the presence of scales. But the court noted that the smell of marijuana could have simply been from consumption, not intent to deliver (even if Washington smoked marijuana, there is still no evidence that he knew how much was in the car). The court also noted that there was no evidence that Mr. Washington even knew that there were scales in the car. The court looked at other claims made by the government attributing evidence of knowledge to Mr. Washington, but dismissed these arguments as mere speculation. The court also noted that a 911 call could have provided some evidence of Mr. Washington’s guilt, but the statement was not offered for the truth of the matter asserted.

The court ultimately held that “[t]he jury could attribute guilt to Mr. Washington based solely on his presence in the car and speculation about his knowledge of Mr. Edwards’s plans. But the presence of Mr. Washington and speculation about his knowledge, even in combination, would not constitute sufficient evidence for the jury to find guilt beyond a reasonable doubt.” Accordingly, the court reversed Mr. Washington’s conviction based on insufficiency of the evidence (which means that retrial is barred by the Double Jeopardy Clause).  Overall, this is a rare win based on insufficiency of the evidence and a very nice result by the attorney in this case. 
--Carl Folsom

Sunday, April 26, 2015

Kirk on competence

[make sure to check out the final paragraph of this post]

I heard a rumor (from Washington, D.C., no less) that Kirk Redmond was featured on Judge Kopf's blog, Hercules and the Umpire. Sure enough, there he was, in an exchange with the Judge about his post, Competent but crazy. Kirk responded in a characteristically thoughtful manner that should be read, and followed, by every defense lawyer. It really is a masterful lesson in how to deal with our mentally ill folks. Without Kirk's express permission (because, what's he gonna do about it?), here is a reprint. Just as a favor, I am including his photo as well:

Your Honor-

Here is what I have learned over the years about clients with profound mental illness that does not render them legally incompetent.

1. Lean in and speak softly. When visiting these clients, the conversational tone is critical. When they speak louder, I speak more softly. When they get agitated and move toward me, I need to lean in to meet them. A quiet, close conversation creates a better bond.

2. All mitigation is double-edged. Judges perceive mental illness as mitigating and aggravating. Presenting a client as mentally ill without a plan for where we go from here is not mitigating at all. It is a recipe for recidivism. After de-institutionalization, jails are the only place that society has provided to contain many of my folks. But by getting Probation involved early in the process, a plan can be developed for what happens after whatever period of incarceration occurs. It works sometimes.

3. Much of the time, I can help only at the margins. The legal standard for competency is not high. My old boss referred to the test as “slipper-eating crazy.” If the client was not actually consuming his footwear, he is legally competent. On the ground, that is the case. It is our job as defense counsel to manage the detritus. As a result, we have a parens patriae relationship to our folks. It’s very hard. We spend a lot of time talking about these questions in our office.

The entire post is here.

And while I was checking that out, I saw that Judge Kopf had posted this video. Columbia Law student production, more for the civil types, but watch it anyway. Good way to start Monday.
Here you go.

-- Melody

Thursday, April 23, 2015

What Should Have Been Obvious

The seven- or eight-minute interregnum between issuing a traffic citation and a K-9 alert violates the Fourth Amendment, absent reasonable suspicion to justify the continued detention. The holding of Rodriguez v. US seems obvious. Still, a surprising result, given the law's general trajectory toward the idea that you expressly waive your Fourth Amendment privileges when you ride in a car. Or maybe we are still on that road, as Rodriguez hasn't really won yet -- the case was remanded to determine whether there was reasonable suspicion to continue the detention for the dog sniff.

Justice Ginsberg wrote for the six-justice majority. "An officer, in other words, may conduct certain unrelated checks during an otherwise lawful traffic stop. But contrary to Justice Alito’s suggestion, . . . . he may not do so in away that prolongs the stop, absent the reasonable suspicion ordinarily demanded to justify detaining an individual." There is some unpacking to be done here -- "certain unrelated checks" can go many directions. Justice Ginsburg, in again rebuffing Alito's  cynicism, poses, "The critical question, then, is not whether the dog sniff occurs before or after the officer issues a ticket, as Justice Alito supposes, but whether conducting the sniff prolongs—i.e., adds time to—the stop."

Justices Kennedy, Thomas, and Alito each wrote dissents. They pointed out how unworkable and inconsistent the results of this opinion will be; Thomas even pointed out that the ruling is "irreconcilable with . . . a number of common police practices." Because that is how we define the Fourth Amendment, right? He posits that police will be trained to work more efficiently to counteract this ruling. Again, stating the obvious.

Remember Place? That was the decision that said a dog sniff was not a search (really). It appears that the Court may be pacing back from Place, as noted by SCOTUSblog. The Rodriguez Court describes a dog sniff as a "a measure aimed at detecting evidence of ordinary criminal wrongdoing.” Again, stating the obvious. That sounds like a search.

Sunday, April 19, 2015

Nichols en banc denial

Rarely does a request for en banc review advance the case (unless you are the government). But when an en banc denial spins off four dissenters and two written dissents, the case is noteworthy. Or even cert-worthy. That case is US v. NicholsFrom Tim Henry, AFPD in Wichita representing Mr. Nichols,

Think back, way back, even before law school; back to American History class in middle school.  Do you remember being taught that there are three branches of government that act as a check or balance against each other’s powers, and that this evidenced the constitutional principle of Separation of Powers?  Well, the members of the 109th Congress were clearly so brilliant in their childhood that they skipped over that year of middle school.  Thus, in the summer of 2006, Congress enacted SORNA (Sex Offender Registration and Notification Act) which gave exclusive discretion to the Attorney General to determine whether SORNA would apply to pre-enactment offenders which, by most estimates, total approximately a half a million people in the United States.  See 42 U.S.C. sec. 16913(d).

No guidance was given by Congress to the Attorney General but for a short declaration of purpose found at section 16901 that simply states a “comprehensive national system for the registration of” sex offenders is needed to “protect the public.”  Nothing more.  This discretion could be that SORNA could apply to none, some (depending on the severity of the prior conviction), or all pre-enactment offenders.  To no one’s surprise, then Attorney General Alberto Gonzalez decided that SORNA should apply to all pre-enactment offenders.

To those who also had American History in high school, you would likely recognize that such vast delegation of authority by the Legislative branch to the Executive branch may raise some Separation of Powers’ hairs on the back of your neck.  Not so with Congress, or with a lot of courts that rarely delve into the minutia of the Non-Delegation Doctrine which is dusted off ever generation or so, only to be sent back to the dusty shelves of our vanishing law libraries.

But alas, there is one judge, Judge Gorsuch of the Tenth Circuit, who said enough is enough.  Joined by three other circuit judges, Judge Gorsuch wrote an opinion taking Congress to task for giving no guidance to the Attorney General when deciding who and how SORNA was to be implemented on pre-enactment offenders.  SORNA failed even to meet the very low “intelligible principle” standard.

In Touby v. United States, 500 U.S. 160, 166 (1991), the Supreme Court suggested an even higher standard than “intelligible principle” is needed where regulatory activity by the Executive branch carries with it criminal consequences.  There, it was suggested the Congressional enactment must provide “meaningful constraint” over the delegation of power to the Executive branch.

Judge Gorsuch, who is known for his well-written and sometimes entertaining opinions, doesn’t disappoint here.  “If the separation of powers means anything, it must mean that the prosecutor isn’t allowed to define the crimes he gets to enforce.”  Taking a cue from Justice Scalia’s dissent in Reynolds v. United States, Judge Gorsuch says SORNA’s delegation to the Attorney General here “doesn’t just sail close to the wind.  It sails right into it.”

Judge Gorsuch makes an important distinction between administrative delegation, e.g., by Congress to the EPA in enforcing the Clean Air Act, and delegation in the criminal context where a “conviction and sentence represent the ultimate intrusions on personal liberty.”  “When it comes to legislative delegations we’ve seen, too, that the framers’ attention to the separation of powers was driven by a particular concern about individual liberty and even more especially by a fear of endowing one set of hands with the power to create and enforce criminal sanctions.” 

Judge Gorsuch “distill[s]” the higher “meaningful constraints” standard suggested in Touby to at least three “meaningful” limitations for Congress to constitutionally delegate its legislative authority to the Executive branch in the criminal context.  “(1) Congress must set forth a clear and generally applicable rule [ ] that (2) hinges on a factual determination by the Executive [ ] and (3) the statute provides criteria the Executive must employ when making its finding [ ].” 

True, some might try to pass off the question of SORNA’s applicability to past offenders as a mere “detail.”  But the statute before us leaves the Attorney General with “unfettered discretion to determine both how and whether SORNA [is] to be retroactively applied” to a half-million individuals under threat of criminal prosecution from his own deputies.[ ]  And however far you want to bend the boundaries of what qualifies as a “detail” it’s hard to see how that might qualify.  Our case just isn’t anything like your grandfather’s tax stamp challenge.
“[I]n a delegation challenge the question isn’t whether the Executive is likely to exercise the delegation in one way or another but whether Congress is empowered to delegate the decision at all.”  And if they do, there must be a direct link between discretion and direction, i.e., the discretion given by Congress must be tied to specific statutory provisions that expressly direct the exercise of the discretion.  Here, SORNA has no direct statutory link between discretion and direction.  The United States admitted as much in their brief in Reynolds v. United States, 132 S.Ct. 975 (2012), where they acknowledged the Attorney General is free to apply SORNA to no pre-enactment offenders, to all of them, or somewhere in between.

For those of you who represent clients charged with SORNA violations, please preserve not only the above Non-Delegation Doctrine challenge for pre-enactment offenders, but also the challenge raised for those whose clients flee to other foreign countries that no longer reside in an “enumerated jurisdiction.”  There is a clear split between the Tenth and Eighth Circuits on this issue that is fully briefed in Nichols Petition for Rehearing En Banc which you should be able to retrieve off of your legal research service.  If not, contact any of the Kansas FPD offices and we will e-mail the petition to you.

-- Tim Henry

Thursday, April 16, 2015

Sentencing Commission adopts guidelines amendments for economic crimes (and others)

The U.S. Sentencing Commission recently announced the amendments to the sentencing guidelines that it will propose to Congress this year. The Commission explained in a press release that the amendments cover a few subjects, but the topics are highlighted by amendments to guidelines covering economic crimes like fraud. Anyone with an interest and a few hours to burn should watch the archived video of the public hearing (it was highly educational).

Chief Judge Patti B. Saris, chair of the Commission, explained that the Commission had closely analyzed the application of the fraud guideline, noting a problem area at the top of the loss table in U.S.S.G. § 2B1.1(b)(1).  In describing the proposed amendments, she stated: “[t]hese amendments emphasize substantial financial harms to victims rather than simply the mere number of victims and recognize concerns regarding double-counting and over-emphasis on loss.” So under the new amendments, a defendant who took the life savings from two victims might be punished more harshly under the amendments than a defendant who took $100 from hundreds of victims.

The Commission also proposed amendments that reclassify hydrocodone as a schedule II drug and that further explain how a defendant can get the minor role reduction.  There are similarly other amendments that we might cover in more detail in future posts.

But also relevant to economic crimes, the Commission recommended that the loss tables for various guidelines be updated for inflation. For example, under § 2B1.1(b)(1), a defendant who embezzles $200,000 right now will have 12 levels added to their base offense level under the loss table. But the threshold for a 12-level increase is being raised from $200,000 to $250,000. So the same offense will be two offense levels lower if the guidelines go into effect after November 1, 2015. This is, of course, subject to change if Congress intervenes.

Nonetheless, anyone with a client charged with an economic crime should be aware of how these new amendments might affect the client’s sentence (and plan accordingly). The amendments to the economic-crime guidelines could even combine with the inflationary adjustments to the loss tables and doubly help your clients. If a change or changes will benefit your client, you should shoot for a sentencing date after November 1, 2015. Or you could try to negotiate into a plea agreement that proposed changes to the guidelines should apply in your case. Either way, these amendments should be on your radar when planning any case strategies for economic offenses in the next few months.

Sunday, April 12, 2015

All Children are Children

All Children are Children: Challenging Abusive Punishment of Juveniles is a report published by the Equal Justice Initiative. Here, EJI set three goals: to end the adult prosecution of any child under age 14; to end the placement of any juvenile under age 18 in an adult jail or prison; and to abolish life without parole and other excessive sentences imposed on children.

It is a heartbreaking report. Much of it centers on children younger than 14 who were sentenced to life or life without parole, and the Supreme Court's rulings in Graham v. Florida (banning juvenile LWOP for non-homicide offenses),  Roper v. Simmons (banning death penalty for children), and Miller v. Alabama. Miller found life without parole for two 14 year-old boys was unconstitutional.

Many of our clients have juvenile criminal history. Our clients' childhood encounters with the law need to be placed in context. Many were institutionalized from a young age. Often race or ethnicity factored into harsher treatment, or the absence of intermediate sanctions. Some were housed in adult jails. The lack of resources or family support often plays a role in the outcome.
14 year old boy sentenced to life imprisonment
without the possibility of parole

From this report:

> Fourteen states have no minimum age for
trying children as adults. Children as young as eight have been prosecuted as adults.

>Some 10,000 children are housed in adult jails and prisons on any given day in America.

> 70% of condemned kids under 14 are children of color.

From Graham v. Florida, "Juveniles are more capable of change than adults, and their actions are less likely to be evidence of ‘irretrievably depraved character’ than are the actions of adults. It remains true that ‘[f ]rom a moral standpoint it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor’s character deficiencies will be reformed."

All of this can help explain the sentencing court why the juvenile record may be unfair, or what impact the juvenile system had on our clients. The mere fact of a juvenile record fails to communicate the circumstances, the vulnerability of our clients' childhood, and the lasting damage from mistreatment in an adult system.

Thursday, April 2, 2015

Online state resources

There are a number of online resources that may be helpful if you have a client with a pending Kansas state case, prior Kansas convictions, or even something from a surrounding state. Most Kansas attorneys know about these sites, but for those out-of-state attorneys who represent clients with Kansas connections, this may be new information.

For example, you can get a good idea of a client’s prior Kansas state felony record at this KASPER site.  It is not a comprehensive criminal history record, but it includes an online record for anyone who served time in the Kansas Department of Corrections, case tracking info, relevant dates, revocations, parole, and so forth. It is very helpful in figuring out a client’s Kansas criminal history. Again, it is not comprehensive. But it can help you compile a more accurate criminal history for your client.

There are also a few sites where you can look up docket information for Kansas state court cases (sort of the state equivalent of pacer):

1.    Access Kansas gives you the option to pay for district court records for cases throughout the state of Kansas.
2.    For Kansas state court cases in Johnson County, you can get free access to docket information at
3.    For Kansas state court cases in Shawnee County, you can get free access to docket information at
4.    For cases involving appeals in Kansas state appellate courts, you can get free docket information using the appellate case inquiry system at

There are also a few options for neighboring states. For Missouri docket information, you can go to CaseNet. This website will even let you get email notifications if there are new actions in any of the cases you want to monitor. For cases in Oklahoma, you can go to Depending on the county, you might have to look in OSCN records, or in Non-OSCN records. You can also get do an “Offender Lookup” for the Oklahoma Department of Corrections here.

                And of course, if any reader knows of any useful sites in other surrounding states, the information does not have to go one way. Please do not hesitate to post useful information in the comments to this post.

-- Carl Folsom