The Incredible Shrinking Career-Offender Guideline

By the time you read this blog post, yet another state offense will be declared NOT a crime of violence for guideline, ACCA, or other predicate purposes.

Or not, but the chances are pretty darned good these days, as evidenced by recent opinions in two circuits holding that robbery is not a violent felony.

And since today marks day one of the new career-offender guideline, it seems like a good time to review some career-offender facts.

In 2015, 99.8% of career offenders were sentenced to imprisonment; the average career-offender sentence was 145 months; and 3/4 of career offenders were sentenced for drug trafficking (in raw numbers, that's over 1,500 drug traffickers sentenced as career offenders).

This last figure---and the fact that drug-trafficking-only career offenders are less likely to recidivate than other career offenders---has inspired the Sentencing Commission to recommend that Congress amend the career-offender directive so that it no longer includes those defendants "who currently qualify as career-offenders based solely on drug-trafficking offenses."

What's that? You've got one of those defendants scheduled for sentencing today, and you can't wait for the amendment? Use the findings in the recommendation to argue for a variance.

As for the rest of us, as Kirk Redmond has been telling everyone and anyone who will listen for the past year, when it comes to predicate offenses:

Question Everything.

Be careful what you say on the record.

We have all been there. You have a co-defendant trial and all of the other co-defendants are continuing a trial setting for another round of motions. And you think those motions should be considered before trial. But your client is in your ear about speedy trial. And then you say this:

Your Honor, as you know, we’ve previously filed a motion for speedy trial based on constitutional speedy trial rights, which the Court has overruled. Solely in order to make sure that I’m not putting myself in a bad position if this ever gets to the Tenth Circuit, Mr. Black wishes to reassert that right and introduce a pro forma objection to any continuance. As I said, Judge, it’s only to—I don’t want to undermine that position if I ever have to get in front of the Tenth Circuit on it.

This is, generally the situation that presented itself in United States v. Black. Unfortunately the 10th Circuit was not impressed with this comment calling it an "especially weak" assertion of the defendants speedy trial right. We know the 10th Circuit wasn't impressed because they not only quoted the lawyer, they quoted the lawyer TWICE in the opinion. And we also know that under Barker v. Wingo, one of the factors in considering whether a defendant's speedy trial right was violated is the defendant's assertion of that right. So, in Black even though there was a 23 month delay (a large amount was attributed to the Defendant), six indictments, two dismissals by the government along the way (but no partridge in a pear tree) the 10th Circuit found no constitutional speedy trial violation.

The practice tip is obvious: the 10th Circuit is listening. They see you when you're sleeping and they definitely know when you have been bad. So when you are trying to enforce a motion (speedy trial or otherwise) be very careful what you say on the record, for goodness sake.

Tenth Circuit constructive-possession law gets a makeover

The Tenth Circuit Criminal Pattern Jury Instructions have long defined constructive possession without any reference to the person's intent to exercise dominion or control:

"A person who, although not in actual possession, knowingly has the power at a given time to exercise dominion or control over an object, either directly or through another person or persons, is then in constructive possession of it."

Instruction § 1.31. This instruction was, until last week, consistent with Tenth Circuit law. See United States v. Colonna, 360 F.3d 1169, 1179 (10th Cir. 2004) ("[i]t is not necessary to show that the defendant intended to exercise . . . dominion or control").

Last week, the Circuit overruled Colonna:

"We thus hold that constructive possession exists when a person not in actual possession knowingly has the power and intent at a given time to exercise dominion or control over an object."

United States v. Little, No. 15-2019, 2016 WL 3902581 at *3 (10th Cir. July 19, 2016) (emphasis added).

This brings the Tenth Circuit in line with "every other circuit but one that has considered the issue," as well as with Henderson v. United States, 135 S.Ct. 1780 (2015).

And this means that the pattern instruction is deficient and must be modified for future cases. Unfortunately for Mr. Little, the Court found the deficiency harmless in his case.

The art is not the artist! Above-GL sentence based on music video is substantively unreasonable.

Was the person who painted this picture inclined towards violence? Does this painting prove that he liked violence? Caravaggio certainly had his share of trouble with the law, but nobody seriously believed that his Judith Beheading Holofernes indicated any murderous intent on his part.

Jumping ahead a few centuries, let's ask the same questions about the images in this music video:

Are the performers in this video inclined towards violence? Does this video prove that they like violence? A district court judge in Puerto Rico thought so. And thus the judge imposed a 96-month sentence on one of the performers---a gun defendant whose advisory guideline range was 24-30 months. According to the judge, this video was "objective evidence" that the defendant's illegal possession of an automatic weapon "was not a mistake." The video was "visual confirmation" of the defendant's "inclination as to violence, his liking to violence."

"[T]his is an individual who makes a life . . . not only carrying this kind of firearm, but also preaching . . . the benefits of having this kind of firearm, the use you can give to them, expressing how you kill people, expressing how you don't care about human life."

The First Circuit reversed, finding the sentence substantively unreasonable:

"In this case, the sentencing court confused the message with the messenger. That led the court to blur the line between the artistic expression of a musical performer and that performer's state of mind qua criminal defendant."

"Implicit in this rationale is the assumption that the lyrics and music videos accurately reflect the defendant's motive, state of mind, personal characteristics, and the like. But this assumption ignores the fact that much artistic expression, by its very nature, has an ambiguous relationship to the performer's personal views. That an actress plays Lady Macbeth, or a folk singer croons "Down in the Willow Garden," or an artist paints "Judith Beheading Holofernes," does not, without more, provide any objective evidence of the performer's motive for committing a crime, of his personal characteristics (beyond his ability to act, sing, or paint, as the case may be), or of any other sentencing factor."

For a deeper dive into the unjustness of treating violent lyrics and imagery in modern hip-hop and other music as autobiography, check out Killer Mike's (and other rap scholars') amicus brief on the history and artistic legitimacy of rap.

If this isn't a rubber stamp - what is?

Thirty-two years ago last week the Supreme Court decided Leon. And that decision held that, in considering whether to sign a warrant, a magistrate must "not serve merely as a rubber stamp for the police." United States v. Leon, 468 U.S. 897, 914 (1984). Are magistrates meeting that requirement?

Using the only data that is available - warrants for wiretaps, FISA warrants and delayed-notice warrants establishes that over 99% of the warrants requested in those areas were approved without any modification. Starting with warrants for wiretaps - according to the "Wiretap Report 2015" released by the United States Courts, "[a] total of 4,148 wiretaps were reported as authorized in 2015, with 1,403 authorized by federal judges and 2,745 authorized by state judges." If 4,148 were authorized how many were denied? "No wiretap applications were reported as denied in 2015."

How about FISA warrants? According to the Department of Justice, 1499 applications were made to the FISC court in 2015. Of those 1,457 requested to included a request to perform electronic surveillance. Of those 1,457 applications one was later withdrawn by the government. Of the remaining 1,456 applications, none were denied, "in whole, or in part."

It is probably better with delayed-notice search warrant requests, right? Maybe a little. According to the Administrative Office of the United States Courts 2014 report, of the 7,627 warrant requests made for delayed-notice search warrants 43 were denied and 64 were granted with some modification. That means that approximately one half of one percent of the application for delayed-notice warrants were denied, and less than one percent that were approved were even approved with some modification. That means of the 7,627 delayed-notice warrants, 99% were approved without any modification. Interestingly, the jurisdiction with the highest number of applications was the District of Kansas, with 909 requests. This was 170 applications more than the second highest district, the Southern District of California with 739.

With numbers like this, maybe it is time to revisit Leon and ensure that the Leon requirement that "courts must also insist that the magistrate purport to perform his neutral and detached function and not serve merely as a rubber stamp for the police" is being met. Even a rubber stamp misses the mark once in a while.

Can't get a minor-role adjustment? Aim for a variance instead.

With our thanks to Doug Berman, whose blog you should read as faithfully as you read the morning paper, we highlight an excellent new law-review article about the minor-role adjustment, USSG § 3B1.2.

The article addresses how frequently couriers and mules continue to be denied minor-role adjustments. There are three reasons why. First, reviewing courts apply outmoded versions of the minor-role guideline, ignoring amendments that tentatively creep toward a broader application. Second, the guidelines’ overwhelming emphasis on drug quantity continues to skew sentences. Third, guideline minor-role analyses ignore empirical research about the truly minor roles that couriers and mules serve in drug-trafficking organizations.

These are problems you often cannot address by asking the Court to apply the minor-role guideline. Mules and couriers are entirely fungible members of a drug trafficking organization. They are very often desperate people, who sign on for a brief and moderately lucrative payday. But they are sentenced just like kingpins, because the minor-role guideline does not dictate otherwise. If the guideline can’t help (though sometimes it can), don’t waste your time pounding on the minor-role door. Present the evidence, and ask for a variance.

---From Kirk Redmond

"No one can breathe in this atmosphere."

Jonathan Rapping, of Gideon's Promise, has it right. From our station as public defense lawyers, we speak from an uncommon place. And our message, in part, is this:

Compliance is not consent. There is no such thing as consent, not anymore. Not if you are a black man. Or Latino. Or a gang member. Or young. Or impoverished. Or _______. The government can no longer credibly say that you “voluntarily consented” to stop, to speak, to get out of the car, to have your pockets searched, your car, your phone, your homes.

Not after these videos. Videos we value evidentiarily, but videos played in a continuous, numbing loop that eventually diminishes the personal tragedy, even as for others, every replay is a fresh hell.                             So mothers and fathers and the community and media and so many other voices say, “Comply!” so that you are not the next video. Remember the LAPD cop who wrote for the Washington Post, “If you don’t want to get shot, tased, pepper-sprayed, struck with a baton or thrown to the ground, just do what I tell you.” 

But when you do comply, that is not consent. There is no such thing as a "consensual search," not anymore. 

That is our message, what we will scour every case for, the context for every conversation we have with our clients, the framework for our Fourth Amendment challenges. The "right to refuse consent" is no longer an option. Read Schneckclothe v. Bustamonte again, as offensive as it is. Consent, it says, is evaluated by all of the circumstances that bear on the defendant.

The totality of the circumstances must now comprehend the videos and the voices. These are no longer “isolated instances”  to be judged only within the moment, on that street corner, by the words spoken right then, from the perspective of the powerful, as “the world dies into explanations.” The Court’s rationale, if it ever was rational, behind Schneckclothe, Florida v. Bostick, United States v. Drayton,  and United States v. Mendenhall  cannot survive in this atmosphere.

Just two weeks ago, Justice Sotomayor cataloged the racist Fourth Amendment failures of the Court, including the decision she dissented from, Utah v. Strieff. She closed with this,

We must not pretend that the countless people who are routinely targeted by police are "isolated." They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere. See L. Guinier & G. Torres, The Miner's Canary 274-283 (2002). They are the ones who recognize that unlawful police stops corrode all our civil liberties and threaten all our lives. Until their voices matter too, our justice system will continue to be anything but.

Note: Thanks to National Association of Public Defense:

Downward variance based, in part, on judge's poll of jury as to appropriate sentence affirmed by the Sixth Circuit.

Good rule of thumb if you want a quick way to know if a case is going to be reversed for abuse of discretion: if the judge being reviewed has their law review article CITED in the opinion - pretty good bet that judge was affirmed. And we have a good example of that principle in a case out of the Sixth Circuit last week in United States v. Collins.

In Collins, the defendant was convicted at a jury trial of one count of receiving and distributing child pornography and one count of possessing child pornography. The statutory maximum for the offense was twenty years with a calculated guideline range of 262 to 327 months. After the verdict the judge polled the jury and asked "State what you believe an appropriate sentence is." The jurors gave a range from zero to sixty months incarceration.

At sentencing the district judge considered the jury poll as "one factor" in determining the sentence. The judge also mentioned lack of history, absence of use of drugs or alcohol, possession of a college degree, regular employment, close family ties and financial responsibility as other factors that were considered. The judge then varied downward, sentencing the defendant to the mandatory minimum of five years on each count and running  the counts concurrent. The government objected to using the jury poll as a factor in determining the sentence.

On appeal to the Sixth Circuit, the Court affirmed. They considered the "propriety of jury polling in imposing a sentence" as "an issue of first impression." After rejecting the governments objections (conflates roles of judge and jury and was simply not a permissible factor to consider), the Sixth Circuit noted, based on a law review written by the same judge, that part of the sentencing commission's task was to take "the community view of the gravity of the offense." The Sixth Circuit was "satisfied" with the district court's discussion of the sentencing factors under 3553(a) and found the sentence to be "not substantively unreasonable."