Sunday, December 29, 2019

Tenth Circuit Breviaries

Last week at the Tenth Circuit:

Fourth Amendment

In case you were wondering, "an officer's gratuitous use of excessive force [here, a "rough ride" to the police station] against a fully compliant, restrained, and non-threatening misdemeanant arrestee is unreasonable---and therefore violates the Fourth Amendment." McCowan v. Morales (affirming district court's denial of qualified immunity).

USSG 4B1.2(b) career-offender drug predicate

In United States v. Faulkner, the Tenth Circuit held that the Oklahoma crime of endeavoring to manufacture a controlled substance "sweeps more broadly than the generic definition of attempt," and it was error for the district court to treat this crime as a career-offender predicate.

Unfortunately for Mr. Faulkner, his lawyer did not object to this error at sentencing. And thus he lost his appellate bid for resentencing because while the district court erred, the error was not plain.

18 U.S.C. 3663A restitution

A district court may not order restitution for losses related to, but not arising directly from, the defendant's offense(s) of conviction. And thus the defendant convicted of possessing/receiving/concealing 3 stolen firearms in United States v. Mendenhall could not be ordered to pay restitution to a pawn shop for losses related to his theft of dozens of other firearms.

Supervised release: grading violations under USSG 7B1.1

Want to know more about how violations of state law are graded in federal supervised-release-violation proceedings? Read United States v. Rodriguez.

Thursday, December 26, 2019

Mississippi judge: ICE cannot detain immigrant during criminal prosecution

In August 2019, ICE raided six chicken-processing plants in Mississippi and detained hundreds of people, including Ms. Baltazar-Sebastian. Two weeks later, she was indicted for misuse of a Social Security number. A federal magistrate judge found that she was not a danger or a flight risk, and released her on bond. But Ms. Baltazar-Sebastian was not released. ICE immediately took her into custody and transferred her to a detention facility in Louisiana for removal proceedings. Motions were filed. The United States asked for reconsideration. ICE got involved. Main Justice got involved.

Judge Carlton Reeves, a judge in the Southern District of Mississippi, held that ICE's detention of Ms. Baltazar-Sebastian violates the release order and has no legal basis. He rejected any argument that the Bail Reform Act and immigration laws were in conflict: the Bail Reform Act requires release if a person is not a danger or a flight risk, and the immigration statute doesn't require otherwise. Judge Reeves rejected the United States' argument that an ICE detainer is an "exception" that creates different rules. In Ms. Baltazar-Sebastian's circumstances (no aggravated felony, no prior removal), immigration detention is permissive (ICE detainer or no), and allows for detention only for removal purposes. But the detention can't be for removal purposes because immigration regulations don't allow for removal during a criminal prosecution. (Border defense lawyers will already know that ICE has a different interpretation of these regulations). Judge Reeves also distinguishes or rejects decisions from circuit courts that have allowed alien-defendants to be detained by ICE, despite a release order in a parallel criminal prosecution.

There is a lot in this opinion. It is worth a read if you come across this situation, as many of us will. Ramped-up immigration enforcement leads not just to more criminal cases, but to increasingly complex difficulties stemming from parallel criminal prosecutions and removal proceedings.

Sunday, December 22, 2019

Tenth Circuit Breviaries

Last week at the Tenth Circuit:

Evidentiary issues

In United States v. Brewington, the Tenth Circuit rejected claims that the district court erroneously excluded emails (some were never offered—listing them in a pretrial report wasn’t enough—and the exclusion of others was harmless), and erroneously limited a witness’s testimony (the witness testified, and the limits on her testimony were reasonable).

Jury instructions on lesser-included offenses

In United States v. Waugh, a drug-distribution case, the Tenth Circuit rejected Mr. Waugh’s claim that the district court should have instructed his jury on the lesser included offense of simple possession. The Court based its decision on “the substantial evidence supporting a distribution theory” and “the complete lack of evidence supporting a personal use theory.”  

Which sentencing guidelines again?

To avoid an ex post facto violation, the district court must apply the guideline version in effect when the offense was committed if a newer version would increase the defendant’s sentencing range. The controlling date is when the offense ended. USSG § 1B1.11 cmt. n.2. In Brewington, the district court applied a post-offense amendment that increased Mr. Brewington’s guidelines range. This was plain error necessitating a remand for resentencing.

Obstruction of justice, USSG § 3C1.1

So your client wants to testify at trial. What advice do you give? Whatever else, that advice should include a warning that if the client testifies and is convicted, the district court might enhance the client’s sentence for obstruction of justice if the district court concludes that the client willfully gave false testimony about a material matter. That was the fate of the defendant in United States v. Fernandez-Barron, a fate upheld by the Tenth Circuit in a lengthy decision discussing both the willfulness and materiality prongs of obstruction.

28 U.S.C. § 2241

Image result for MARIJUANA HORSESince 2014, Congress has passed an appropriations rider every year stating that no appropriated funds may be used by the Justice Department to prevent states from implementing their own laws legalizing acts relating to medical marijuana. Aaron Sandusky was convicted in federal court of trafficking marijuana. He filed a habeas petition under 28 U.S.C. § 2241 arguing that his offense conduct was compliant with California state law, and that, during any time that a marijuana appropriations rider is in effect, the BOP cannot expend funds to incarcerate him. The district court dismissed, holding that § 2241 was not the right vehicle for the claim.

The Tenth Circuit reversed. Because Mr. Sandusky challenged only the execution of his sentence (not the validity of his conviction or sentence), § 2241 was the right vehicle. The case now goes back to the district court for proceedings on the merits of the appropriations-rider claim—an issue that the Tenth Circuit points out will be one of first impression.

Sunday, December 15, 2019

Tenth Circuit Breviaries

It's been a quiet couple of weeks at the Tenth Circuit. The Court has not published any new decisions in criminal appeals. But last week it issued an order publishing its previously unpublished opinion in United States v. Fagatele. In Fagatele, the Court held that Utah third-degree aggravated assault is a crime of violence under USSG 4B1.2(a)'s elements clause.

Wednesday, December 4, 2019

The Case of the Polite Bank Robber

Bank robbers get a two-level sentencing enhancement for making a death threat. But all bank robberies involve some explicit or implicit threat of harm. So, says the 11th Circuit, we must distinguish between "less bad" bank robberies and worse ones when we decide who qualifies for the death-threat enhancement. This unarmed robber walked into two different banks, gave the tellers notes asking for money and telling them he "had kids to feed," and then "bargained pleasantly" for the money. Even though his notes stated that "no one would get hurt" if the tellers gave him the money, he never stated or implied that he had a weapon, and the tellers did not act as if they feared him. The court held that his actions would not have caused a reasonable person to fear for their life, and he should not have received the enhancement. 

In fact, in this case the government agreed that the robber should not have received the death-threat enhancement. The 11th Circuit appointed a lawyer as amicus to defend the district court's ruling.

Sunday, December 1, 2019

Tenth Circuit Breviaries

The Tenth Circuit did not publish any decisions in any direct criminal appeals last week.

Habeas practitioners will want to read Davis v. Sharp, affirming the denial of 28 U.S.C. 2254 relief to an Oklahoma state capital defendant. Sharp discusses anticipatory procedural bars, procedural default, and defense counsel's obligations with respect to investigating and presenting mental-health claims at trial.