Sunday, January 31, 2016

Into the Morass: The Cert Grant in Welch and Kansas Robbery

We are very excited that the Supreme Court decided to review the Eleventh Circuit’s decision in Welch v. United States. The issue in Welch garnering all of the press coverage is whether the Court’s decision in Johnson is retroactive to cases on collateral review.

But the Court also agreed to resolve another question of immediate importance to us in Kansas—whether a robbery statute that equates force to mere touching  can support a federal sentencing enhancement as a violent felony of crime of violence. In Welch, the Florida statute permitted a robbery conviction by purse snatching.  

This is, for us, kind of a big deal. In Kansas, robbery is the “taking of property from the person or presence of another by force”. Merely grabbing someone else’s property satisfies Kansas’ diluted force requirement. In short, Welch will resolve whether Kansas robbery meets the federal enhancement definition.

But there’s more! You know who agrees with our view of things in Welch? The Department of Justice. As Mr. Welch’s supplemental brief notes, “[T]here is no dispute that Petitioner was sentenced pursuant to the now-void residual clause of ACCA.” DOJ is not defending the Eleventh Circuit’s judgment by arguing that a robbery predicated on mere touching satisfies the force clause. Which, well, seems to create some cognitive dissonance when the Government argues the opposite in Kansas courtrooms.

So if a prosecutor in our hallowed jurisdiction contends that Kansas robbery meets the force clause, remember that the agency that they work for, the Department of Justice, disagrees. 

-- Kirk

Sunday, January 24, 2016

How to Dismiss a Case with Prejudice under the Speedy Trial Act (Hint: a "Sordid History" Helps)

Wondering what factors to emphasize in your motion to dismiss a case with prejudice for violations of the Speedy Trial Act? Look no further than United States v. Koerber, a case decided last week by the Tenth Circuit.

In Koerber, the government won its appeal from a Utah district court order dismissing a Ponzi-scheme prosecution with prejudice. But the government's win was limited to a remand with instructions for the district court to reweigh the seriousness of the offense and the defendant's contributions to the delays in the case. Otherwise, the Tenth Circuit approved of the district court's findings, and suggested that those findings may yet support dismissal with prejudice:
After including these two considerations in its analysis, the district court retains discretion to conclude that, among other things, 'the sordid history of this case,' and the 'Government's pattern of neglect and dilatory conduct in managing the STA clock' outweigh those facts and require a dismissal with prejudice.
The Tenth Circuit discussed the district court's findings in detail, offering the following analysis of the statutory dismissal factors:

Seriousness of offense. If the offense is serious, this factor weighs in favor of dismissal without prejudice, period. The court is not to consider the strength of the allegations or the presumption of innocence in connection with this factor (the trial court's first error in Koerber).

Facts and circumstances. In weighing this factor, the trial court may consider the government's "pattern of neglect" in failing to prepare proper ends-of-justice continuance orders. The court may also consider the government's dilatory efforts to appeal a suppression order, and, after dismissing the appeal (because it failed to get the Solicitor General's authorization), to seek an untimely rehearing of the order. The court may consider the government's general pattern of misconduct in the case, including its investigatory (mis)conduct that led to the suppression order, and its dilatory discovery tactics. Finally, the court must also consider the defendant's contributions to the delays (the trial court's second error in Koerber).

Impact of reprosecution. The trial court may rely on the government's mishandling of the case when weighing this factor. And in this case, the government's loss of 27 discs of information and an agent's testimony that he remembered little of several critical communications were sufficient to establish prejudice. The court may also properly consider the passage of time and the fact that the case "cycl[ed] through a dozen Assistant United States Attorneys" when weighing this factor.

Tuesday, January 19, 2016

Compassionate Release---Without the Irony!

In broadening the bases for granting early release in the proposed amendments of the compassionate release guideline, §1B1.13, the Sentencing Commission recognizes that old age and responsibilities to others are valid considerations in deciding how long an offender should remain imprisoned. Although the amendments are directed only at early release under 18 U.S.C. § 3582(c)(1)(A), the rationale of the amendments should provide some fodder for requests for variances for defendants who are older than the norm or who act as sole caregivers for minor children or incapacitated spouses/partners.  

Family ties. The policy statement governing departures based on “family ties and responsibilities,” USSC §5H1.6, is harsh, and appellate courts typically share the Commission’s disdain for this type of mitigation. The Tenth Circuit, for example, has reversed the grant of a departure to a widowed parent of three minor children, noting that “[o]ther circuits have also held that a defendant's status as a single parent does not constitute an extraordinary family circumstance warranting departure.” United States v. Rodriguez-Velarde, 127 F.3d 966, 968-69 (10th Cir. 1997). But even the existing version of the compassionate release guideline, §1B1.13, is in tension with §5H1.6: The current version of the compassionate release guideline labels “[t]he death or incapacitation of the defendant's only family member capable of caring for the defendant's minor child or minor children” as an “extraordinary and compelling reason[]” for a sentence reduction. USSG §1B1.13. The family ties and responsibilities guideline contains no such categorical statement.

The amendment to §1B1.13 would liberalize the compassionate release policy in two ways. First, while the current commentary to this provision requires that the death or incapacitation be that of the “only family member capable of caring for the defendant's minor child or minor children,” §1B1.13, cmt. n. 1(A)(iii) (emphasis added), the proposed amendment would drop “only” from this provision. Second, the proposed amendment would recognize an additional ground for compassionate release: the incapacitation of the defendant’s “spouse or registered partner,” so long as the defendant is the “only available caregiver” for the incapacitated spouse or partner.

Age. In the “issue for comment” section of the proposal, the Commission at least implicitly endorsed several bases for seeking variances for older defendants:

In May 2015, the Department of Justice’s Office of the Inspector General (OIG) released a report on the Bureau of Prisons’ implementation of the compassionate release program provisions related to elderly inmates. See U.S. Department of Justice, Office of the Inspector General, The Impact of the Aging Inmate Population on the Federal Bureau of Prisons, E-15-05 (May 2015), available at The report found that while aging inmates (age 50 years or older) make up a disproportionate share of the inmate population, are more costly to incarcerate (primarily due to medical needs), engage in less misconduct while in prison, and have a lower rate of re-arrest once released than their younger counterparts, “BOP policies limit the number of aging inmates who can be considered for early release and, as a result, few are actually released early.”

This paragraph could be cited to support variance arguments based on cost and the reduced need for incapacitation and specific deterrence of older defendants. The paragraph also refutes the notion that the BOP can be trusted to release older inmates who should no longer be incarcerated. When seeking variances for older offenders, this language could be used to rebut government arguments based on the claimed availability of early release.
Contributed by Tom Bartee

Monday, January 11, 2016

Into the Morass: The Bitter with the Sweet in Career-Offender Guideline Amendments

The big news last week was the Sentencing Commission's announcement of several proposed amendments to the "crime of violence" definitions in the career-offender guideline at § 4B1.2. These amendments, if approved by Congress (which they probably will be), will take effect August 1, 2016, and will not be retroactive. As is so often the case, we'll have to take the bitter with the sweet. Let's start with the good news:

The sweet

First, we have to give kudos to the Tenth Circuit for being one of the first (the first?) of the circuit courts to recognize and declare the unconstitutionality of the career-offender residual clause. The Commission's amendments strike that clause from the guideline.

Second, good riddance to the "burglary of a dwelling" predicate. The amendments eliminate burglary as an enumerated predicate offense (though new commentary suggests that a violent burglary may be grounds for an upward departure). 

Third, new commentary to § 4B1.1 suggests that if the career-offender guideline is triggered by prior felony convictions for crimes that are now classified as misdemeanors, a downward departure may be appropriate.

The bitter

First, the amendments add new enumerated predicate offenses. In our last Into the Morass post, we pointed out that the "commentary offenses" listed in the application notes to § 4B1.2 should not trigger the career-offender guideline unless they meet the elements of the force clause, or are included in the enumerated-offenses clause within the guideline itself. This is because the application notes cannot trump the guideline itself. The Commission's amendments answer this dilemma by moving (most of) the commentary offenses into the guideline itself. Note that while "manslaughter" was listed as a commentary offense, the new enumerated offenses include only "voluntary manslaughter." And "extortionate extension of credit" is gone. Extortion remains an enumerated offense, with a commentary definition limiting it to instances involving force or the fear or threat of physical injury.

Second, new commentary defining "forcible sex offense" (now an enumerated offense within the guideline itself) may open the door to more statutory rapes and other sex crimes being classified as crimes of violence.

What hasn't changed

The amendments affect the career-offender guideline and other guidelines that cross-reference the career-offender guideline (§ 2K2.1 felon in possesion,  § 7B1.1 supervised release classification). They do not affect the unlawful reentry guideline at  § 2L1.2.

What can I do for my clients between now and August 16?

These are, for the most part, substantive changes to the guidelines rather than clarifying amendments. There are three ways to give effect to the positive changes: continue any sentencing past the date that the amendments will be effective; get an agreement from the prosecutor that the effect of the changes should apply; or move for a downward variance.

For the negative amendments, because they are substantive, they cannot be applied retroactively. If your sentencing is set past the effective date, argue that application of the punitive amendments violate the ex post facto clause, as held in Peugh v. United States

All in all, these amendments are a clear and significant win for the defense. Burglary of a dwelling forced many of our clients into the career offender category, or elevated the base offense level for a felon-in-possession, adding years to guideline sentences. But no more. That is sweet.

Sunday, January 3, 2016

Gideon: An Obvious Truth

Rereading Gideon is a splendid beginning for 2016. The guileless writing doesn't predict the sea change that would be brought about by this decision. It is both a history lesson and a model of constitutional law, reaching the "obvious truth" that indigent people accused of crimes must be provided effective assistance of counsel. Because of Gideon, we have a public defender system and the Criminal Justice Act.

Some selected quotes from Justice Black:

"[R]eason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth."

"The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours."

"This noble ideal [that every defendant stands equal before the law] cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him."

Gideon is a short read. Here it is.