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").