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U.S. Supreme Court News
The Supreme Court granted cert today in Fernandez v. California, No. 12-7822. Here is the summary of the issue from SCOTUSblog:

Police searches: The Court agreed to spell out further whether police may enter a home, without a warrant, to make a search, when the home is occupied by two individuals but consent to search has been given only by one of them. A Los Angeles man in the case urged the Court to hear it, in order to clarify whether a co-occupant of a home must be on hand to object to a police search, when the other occupant has agreed to let the officers enter. The case of Fernandez v. California (12-7822) seeks clarification of the Court’s 2006 decision inGeorgia v. Randolph.

The decision below and cert papers can be found here.

Florida v. Harris, No. 11-817

In a unanimous opinion written by Justice Kagan, the Supreme Court reversed the Florida Supreme Court's holding that, to demonstrate a drug detection dog's reliability, the state must produce the dog's training and certification records, along with a wide array of evidence relating to the dog's reliability. Instead, the Court held, "[t]he question—similar to every inquiry into probable cause—is whether all the facts surrounding a dog’s alert, viewed through the lens of common sense, would make a reasonably prudent person think that a search would reveal contraband or evidence of a crime. A sniff is up to snuff when it meets that test." This allows the state to introduce evidence of a dog's reliability and for the defendant to challenge that evidence, but does not "prescribe an inflexible set of evidentiary requirements." The Court noted that the Solicitor General acknowledged at oral argument that evidence of a dog's (or handler's) history or performance in the field "may sometimes be relevant."

Opinion here: http://www.supremecourt.gov/opinions/12pdf/11-817_5if6.pdf

[The other dog sniff case, Florida v. Jardines (No. 11-564), which presents the question "whether a dog sniff at the front door of a suspected grow house by a trained narcotics detection dog is a Fourth Amendment search requiring probable cause," has not yet been decided.]

Bailey v. United States, No. 11-770

With Justice Kennedy writing for the majority, the Supreme Court held that Michigan v. Summers, 452 U.S. 692 (1981), which categorically authorizes law enforcement officers “to detain the occupants of the premises while a proper search is conducted" without need for any level of suspicion, Muehler v. Mena, 544 U. S. 93 (2005), does not extend to the detention of a person who is not within the premises being searched or its "immediate vicinity." As a result , the detention of an individual who had left the premises before the search began and was a mile away before police detained him was not lawful under Michigan v. Summers. The Court added that "[i]n closer cases courts can consider a number of factors to determine whether an occupant was detained within the immediate vicinity of the premises to be searched, including the lawful limits of the premises, whether the occupant was within the line of sight of his dwelling, the ease of reentry from the occupant’s location, and other relevant factors."

Though the Second Circuit's attempted extension of Michigan v. Summers is now off the table, the Court was careful to point out the alternative avenues for lawful detention: "If officers elect to defer the detention until the suspect or departing occupant leaves the immediate vicinity, the lawfulness of detention is controlled by other standards, including, of course, a brief stop for questioning based on reasonable suspicion under Terry or an arrest based on probable cause. A suspect's particular actions in leaving the scene, including whether he appears to be armed or fleeing with the evidence sought, and any information the officers acquire from those who are conducting the search, including information that incriminating evidence has been discovered, will bear, of course, on the lawfulness of a later stop or detention."

Justice Breyer, joined by Justices Thomas, and Alito, dissented.

Opinion here: http://www.supremecourt.gov/opinions/12pdf/11-770_j4ek.pdf

Bond v. United States, No. 12-158. As summarized by ScotusBlog:

"The case involves Carol Anne Bond of Lansdale, Pennsylvania, who has been convicted of violating the federal law that carried out a global treaty seeking to ban the spread of chemical weapons. The Court had ruled in her favor earlier in a preliminary case when the issue was whether Bond was entitled to pursue a constitutional challenge, based on states’ rights, to the poisoning prosecution under the weapons treaty. The Court allowed her to go forward with that challenge, but then it failed in a lower federal appeals court. Bond says she accepts criminal responsibility for trying to spread poison where her husband’s paramour would touch it, but protests that she faces much more severe punishment under the treaty-related law than if she were prosecuted under state law for poisoning cases."

The Third Circuit, below, while affirming the conviction, noted that the federal prosecutor's "decision to use the Act -- a statute designed to implement a chemical weapons treaty -- to deal with a jilted spouse's revenge on her rival is, to be polite, a puzzling use of the government's power."

The questions presented are:
Do the Constitution's structural limits on federal authority impose any constraints on the scope of Congress' authority to enact legislation to implement a valid treaty, at least in circumstances where the federal statute, as applied, goes far beyond the scope of the treaty, intrudes on traditional state prerogatives, and is concededly unnecessary to satisfy the government's treaty obligations?

Can the provisions of the Chemical Weapons Convention Implementation Act, codified at 18 U.S.C. § 229, be interpreted not to reach ordinary poisoning cases, which have been adequately handled by state and local authorities since the Framing, in order to avoid the difficult constitutional questions involving the scope of and continuing vitality of this Court's decision in Missouri v. Holland?

Cert stage pleadings and the decision below can be found here.
Metrish v. Lancaster, No. 12-547.
When a former Detroit police officer, Burt Lancaster (no, not the actor who died in 1994), killed his girlfriend in 1993, a defendant in Michigan could raise the defense of diminished mental capacity. At Lancaster's (second) trial in 2005, the trial court prohibited Lancaster for using that defense because, in a 2001 decision, the Michigan Supreme Court "abolished the diminished-capacity defense" in the state of Michigan. The Sixth Circuit held the retroactive application of that 2001 decision was an unreasonable application of clearly established Supreme Court precedent.

The questions presented are:
1. Whether the Michigan Supreme Court's recognition that a state statute abolished the long-maligned diminished-capacity defense was an "unexpected and indefensible" change in a common-law doctrine of criminal law under this Court's retroactivity jurisprudence. See Rogers v. Tennessee, 532 U.S. 451 (2001).
2. Whether the Michigan Court of Appeals' retroactive application of the Michigan Supreme Court's decision was "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement" so as to justify habeas relief. Harrington v. Richter, 131 S. Ct. 770, 786-87 (2011).

Cert stage pleadings and the decision below can be found here.

Preserve the issue!
The Supreme Court granted certiorari today in Descamps v. United States (11-9540). The grant is limited to the first question presented regarding when a court may apply the modified categorical approach to determine whether a prior conviction should be used to enhance a sentence. Descamps comes to the the Court from the Ninth Circuit, which has been an outlier among the circuits with its rule on when to apply the modified categorical approach. A majority of the circuits have held that the modified categorical approach should only be used when the prior conviction involves a divisible statute. Just last month, the Second and Fourth Circuits said so in United States v. Beardsley,2012 WL 3641933 (2d Cir. Aug. 27, 2012) and United States v. Gomez, 2012 WL 3243512 (4th Cir. Aug. 10, 2012). The Ninth Circuit, however, in its 2011 ruling in United States v. Aguila-Montes de Oca, 655 F.3d 915 (9th Cir. 2011) (en banc) held: “In any case requiring the application of Taylor’s categorical approach, in the event that we determine that the statute under which the defendant or alien was previously convicted is categorically broader than the generic offense, we may apply the modified categorical approach. Under the modified categorical approach, we determine, in light of the facts in the judicially noticeable documents, (1) what facts the conviction necessarily rested on (that is, what facts the trier of fact was actually required to find); and (2) whether these facts satisfy the elements of the generic offense.” Aguila-Montes de Oca, 655 F.3d at 940.

But now, there is Descamps, where the first Question Presented is:

Whether the Ninth Circuit's ruling in United States v. Aguila-Montes De Oca, 655
F.3d 915 (9th Cir. 2011), (En Banc) that a state conviction for burglary where the
statute is missing an element of the generic crime, may be subject to the modified
categorical approach, even though most other Circuit Courts of Appeal would not
allow it.

Here is more about the case from SCOTUSblog:

The Court’s order granting review of the burglary case involves the use of a state burglary conviction as a basis for enhancing a sentence for a federal crime under the Armed Career Criminal Act.  The case involves a Spokane, Wash., man, Matthew Robert Descamps, who was convicted of the federal crime of being a felon who had a gun illegally.  He was sentenced under that Act to 262 months in prison, based in part on a 1978 conviction — a guilty plea — for the burglary of a grocery store in California, treating that conviction as one for a “violent felony.”
In his petition, Descamps’s lawyers argued that the burglary conviction should not count in the sentencing calculation, because the California law at issue does not include the element of entering or remaining illegally at the site of the alleged crime.   That omission, the petition claimed, means that the crime does not fit the definition of “generic burglary.”   The Ninth Circuit, however, supplied that element, finding that burglary under the California law at issue in Deschamps’s case is broader than “generic burglary,” and thus counts under the ACCA.
The U.S. Solicitor General had urged the Court not to hear Descamps’s case, even though the government conceded that there is some disagreement among lower courts on when a federal court may supply a missing element of a crime, using what is technically called the “modified categorical approach.”   The Solicitor General said that conflict predates a definitive ruling on the issue by the Ninth Circuit, so Supreme Court review at this point would be premature.

The unpublished Ninth Circuit Memorandum can be found here.

Supreme Court holds today that Apprendi applies to criminal fines

In other news, the Court decided Southern Union Co. v. United States, No. 11–94, to hold that Apprendi applies to the imposition of criminal fines. Majority opinion by Justice Sotomayor. Justice Breyer dissents, joined by Justices Kennedy and Alito. In addition to a straightforward application of the rule in Apprendi, the opinion contains lots of fascinating discussion of the historical scope of the role of the jury in the imposition of fines.


Supreme Court decides Dorsey/Hill -- We win!
5-4 decision, majority opinion by Breyer.


"[W]e conclude that Congress intended the Fair Sentencing Act’s new,lower mandatory minimums to apply to the post-Act sentencing of pre-Act offenders. That is the Act's 'plain import' or 'fair implication.'"

Congratulations to everyone everywhere who started and kept the fire lit, and especially to Mr. Dorsey and Mr. Hill.

The Supreme Court granted cert in Bailey v. United States, No. 11-770.

The issue is:
Whether, pursuant to Michigan v. Summers, 452 U.S. 692 (1981), police officers may detain an individual
incident to the execution of a search warrant when the individual has left the immediate vicinity of the premises
before the warrant is executed.

Here is a link to the SCOTUSblog page with links to the opinion below and cert-stage documents:

The Supreme Court granted cert today on the retroactivity of Padilla. The case is Chaidez v. United States, No. 11-820.
The Question presented is:
In Padilla v. Kentucky, 130 S. Ct. 1473 (2010), this Court held that criminal defendants receive ineffective assistance of counsel under the Sixth Amendment when their attorneys fail to advise them that pleading guilty to an offense will subject them to deportation. The question presented is whether Padilla applies to persons whose convictions became final before its announcement.

Links to cert papers and the CA7 opinion below can be found here:

The Supreme Court granted cert today in Setser v. United States, No. 10-7387, to decide whether a district court has the authority to order a federal sentence to run consecutive to an anticipated, but not-yet-imposed, state sentence. Following longstanding precedent, the Fifth Circuit held that 18 USC 3584 authorizes district courts to order a federal sentence to run consecutively to an undischarged state sentence. In the process, the court acknowledged a split in the circuits and the recent recommendation by two judges that the court reconsider the issue. (The Fifth Circuit is joined by the Eighth, Tenth, and Eleventh Circuits, while the Second, Fourth, Sixth, and Ninth Circuits have held that 18 USC 3584 does not authorize a district court to impose a federal sentence to be served consecutively to an undischarged state sentence.) In a footnote, the Fifth Circuit pretty much said its position would never change unless and until the Supreme Court overrules the circuit's precedent.

The Solicitor General conceded error, stating that "[t]he government agrees with petitioner" that 18 USC 3584(a) does not authorize district courts to order a federal sentence to run consecutively to a not-yet-imposed state sentence." But the government argued (as it has argued in a number of similar cases), that review is not warranted because the error has "scant practical effect" because the state court and BOP can decide for themselves whether to take the other sovereign's sentence into account.

Congratulations to Jason Hawkins and Matthew Wright, AFPDs for the Northern District of Texas, for showing that the government is wrong about the practical effect of the error, and convincing the Court to review the Fifth Circuit's misinterpretation of the statute.

Opinion below: United States v. Setser, 607 F.3d 128 (5th Cir. 2010).

Bad news from the Supreme Court yesterday:

DePierre v. United States, No. 09-1533. The Court addressed the meaning of "cocaine base" as used in 18 USC 841(b)(1)(A), and specifically whether that term refers only to crack cocaine, or to every form of cocaine that is chemically a base. Acknowledging that the statute is not "crystalline," the Court nonetheless concluded, "the term 'cocaine base' as used in 841(b)(1) means not just 'crack cocaine,' but cocaine in its chemically basic form."
The decision is available at: http://www.supremecourt.gov/opinions/10pdf/09-1533.pdf

Sykes v. United States, No. 09-11311. In Indiana, it is a criminal offense when the driver of a vehicle knowingly or intentially "flees frmo a law enforcement officer." The Court concluded (6-3) that "the vehicle flight that the statute proscribes is a violent felony as the federal statute uses that term." Specifically, the Court concluded the Indiana law, "as a categorical matter," "presents a serious potential risk of physical injury to another." Justice Kennedy wrote for the majority: "When a perpetrator defies a law enforcement command by fleeing in a car, the determination to elude capture makes a lack of concern for the safety of property and persons of pedestrians and other drivers an inherent part of the offense." The risks associated with this conduct, Justice Kennedy explained, "outstrip the dangers of at least two offense enumerated in 18 USC 924(e)(2)(B)(ii)" -- arson and burglary. The majority concludes the Begay "purposeful, violent and aggressive" test is "redundant" in this case. A conclusion both dissenting opinions find to be "puzzling." Justice Kagan (joined by Justice Ginsburg), dissenting, "assume this test will make a resurgence -- that it will be declared non-redundant -- the next time the Court considers a crime, whether intentional or not, that involves risk of injury but not aggression or violence."

In dissent, Justice Scalia criticized the majority for producing "a fourth ad hoc judgment that will sow further confusion," and called for the Court to "admit that ACCA's residual provision is a drafting failure and declare it void for vagueness." Proposing an alternative approach, Justice Scalia wrote: "I do not think it would be a radical step -- indeed, I think it would be highly responsible - to limit ACCA to the named violent crimes. Congress can quickly add what it wishes."

Justice Kagan (joined by Justice Ginsburg) writes a dissenting opinion for a different reason: "Because petitioner Marcus Sykes was convicted only of simple vehicular flight, and not of any flight offense involving aggressive or dangerous activity, I would find that he did not commit a 'violent felony' under ACCA."
The decision is available at: http://www.supremecourt.gov/opinions/10pdf/09-11311.pdf


At issue in the case was whether using a vehicle while knowingly or intentionally fleeing from a law enforcement officer after being ordered to stop constitutes a “violent felony” for purposes of the Armed Career Criminal Act, 18 U.S.C. § 924(e). By a vote of six to three, the Court held that felony vehicle flight, as proscribed by Indiana law, is a violent felony for purposes of the ACCA. Justice Scalia filed a dissenting opinion. Justice Kagan also filed a dissenting opinion, which Justice Ginsburg joined.

Today, the Supreme Court decided McNeill v. United States. In a unanimous opinion written by Justice Thomas, the Court held that for purposes of determining whether a conviction for a prior state drug offense is a "serious drug offense" under the Armed Career Criminal Act,(i.e., the "maximum term of imprisonment" for that offense is ten years or more), the "maximum term of imprisonment "is the maximum sentence applicable to his offense when he was convicted of it." Mr. McNeill had argued that six state drug convictions were not "serious drug offenses" because, although the statutory maximum was ten years at the time of the offenses (and although he was actually sentenced to ten years for them), North Carolina later reduced the maximum term of imprisonment to well below 10 years.

The court relied on the plain terms of the statute to reach its conclusion.

Opinion here:


United States v. Tinklenberg, No. 09-1498
This case involved an interpretation of the Speedy Trial Act, and whether certain pretrial motions are excluded from the 70-day time period. Below, the Sixth Circuit concluded the Act had been violated because some pretrial motions did not cause delay or an expectation of delay, and thus the days when those motions were pending should not have been excluded from the 70-day calculation. The Supreme Court rejected the Sixth Circuit's "motion-by-motion causation test" and held that the exclusion for pretrial motions applies "irrespective of whether [the motion] actually causes, or is expected to cause, delay in starting a trial." But in good news for Mr. Tinklenberg, the Court agreed that the Act was violated on the alternative basis that the district court improperly excluded holidays and weekends during the 20 days spent on transportation related to a competency evaluation. By statute, transportation in excess of 10 days is presumptively unreasonable. In calculating the number of presumptively unreasonable days, the district court exempted holiday and weekend days, so that only 2 days, instead of 10, were considered excessive, during which the Speedy Trial clock continued to tick. Looking to the common law and other federal statutes, the Supreme Court concluded holiday and weekend days should not be excluded from the 70-day time period. Adding the extra 8 days the district court failed to count pushed Mr. Tinklenberg over the 70-day maximum.
Congratulations to Mr. Tinklenberg, AFPD Kevin Schad, and Jeff Fisher.
The opinion is available at:

Fowler v. United States, No. 10-5443. 
This case involved an interpretation of the federal witness tampering statute which makes it a crime "to kill another person, with intent to ... prevent the communication by any person to a law enforcement officer ... of the United States" of "information relating to the possible commission of a Federal offense."  The question before the Court was what, if anything, the government must show beyond broad intent to prevent communication with law enforcement officers in general.  In a divided opinion, the majority held that the government need only show "that there is a reasonable likelihood that a relevant communication would have been made to a federal officer."  The Court remanded to the 11th Circuit for application of this new standard. 
In a concurring opinion, Justice Scalia criticizes the "reasonable likelihood" standard as having no basis in the text, and predicting confusion.  In his view, "the Government must prove that the defendant intended to prevent a communication which, had it been made, would beyond a reasonable doubt have been made to a federal law enforcement officer."
Justice Alito, dissenting (joined by Justice Ginsburg), concludes that the majority is adding an element to the offense.
The Supreme Court held today in Pepper that a district court may consider post-sentencing rehabilitation at resentencing, reversing the Eighth Circuit, which had held that courts were categorically precluded from considering such information.   In the process, it excised 18 USC 3742 (g)(2) as having been invalidated by Booker.
In an opinion written by Justice Sotomayor, the Court invoked 18 USC §§ 3661 and 3553(a) as the clear authority for considering post-sentencing rehabilitation, as well as the Court's sweeping language in Williams v. New York, 337 U. S. 241 (1949), now codified in §3661: “ "Highly relevant—if not essential—to [the] selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant’s life and characteristics.”
Regarding the Commission's policy statement at 5K2.19 (which prohibits departures based on post-sentencing rehabilitation), the Court demonstrated in delicious detail why the Commission's policy is completely unsound and in conflict with several provisions of 3553(a).
Justice Breyer concurred in the result, even agreeing here that the Commission's policy statement at 5K2.19 is entirely unconvincing.   However, Justice Breyer remains convinced that the guidelines offer sound advice in other areas, and expressed his (lone?) opinion that "closer review" should be applied to all district court decisions disagreeing with
a guideline. 
Justice Alito partially concurred and partially dissented, again expressing his belief that "sentencing judges should be required to give significant weight to all Guidelines provisions and policy statements."    But he was convinced here by Justice Breyer that the policy decision made by the Commission to prohibit consideration of post-sentencing rehabilitation was "unusual" and "distinguishable from almost all the other rules the Commission has adopted." (Right!)
Justice Thomas dissented, based on his continuing view that the Booker remedy was too broad.   But even Justice Thomas does not agree with the Commission's policy statement, agreeing with the majority that "postsentencing rehabilitation can be highly relevant to meaningful resentencing," and that in light of Mr. Pepper's successes, "I do not see what purpose further incarceration would serve."  But he views himself bound by the Commission's policy statement because there was no Sixth Amendment violation in this particular case.  In other words, it's okay to send someone to prison when it serves no legitimate purpose.
Not only is this a great win for the consideration of post-sentencing rehabilitation (and every single other factor relevant to sentencing under §§ 3661 and 3553(a)), but this case stands as resounding support for deconstructing the guidelines and policy statements to show that they were not developed in the Commission's "characteristic institutional role" and constitute unsound policy.  The majority said:  "[O]ur post-Booker decisions make clear that a district court may in appropriate cases impose a non-Guidelinessentence based on a disagreement with the Commission’sviews. See id., at 109–110. That is particularly true where, as here, the Commission’s views rest on wholly unconvincing policy rationales not reflected in the sentencing statutes Congress enacted."  Slip op. 23.  Continue to beware of Justice Breyer's view of the meaning of "closer review,"  but even his opinion shows that so long as we can show a guideline or policy statement is unconvincing as a matter of policy, we will survive even whatever "closer review" might be.  [Disagreement with a guideline not developed in Commn’s “characteristic institutional role,” i.e., one that is not based on empirical data or national experience, or is otherwise unconvincing, gets as much “respect” on appeal as any other departure or variance.  Spears v. US, 129 S. Ct. 840 (2009).  It is only when the judge disagrees based on his or her personal "view" that "closer review" might apply (and Justice Scalia would say "closer review" violates the 6A).  Just be sure to provide the information/evidence that the guideline is unsound.] 
Congratulations to Al Parrish, a private practitioner in  Des Moines Iowa, who has pressed this case without charge for years, and to all those who assisted throughout.
Today, in Wall v. Kholi, No. 09-868 the Supreme Court issued a 9-0 opinion (Scalia concurring) for Mr. Kholi. The Court decided that Mr. Kholi's federal habeas petition was timely because his motion in state court to reduce his sentence tolled the federal statute of limitations period. The Court held that "the phrase 'collateral review' in §2244(d)(2) means judicial review of a judgment in a proceeding that is not part of direct review.”

Congratulations to AFPD Judy Mizner!

The Court also issued its opinion in Skinner v. Switzer, No. 09-9000. In a 6-3 decision, the Court held that "a postconviction claim for DNA testing is properly pursued in a § 1983 action."

Congratulations to former AFPD Rob Owen!

More information about these decisions, and links to them, can be found at:
Supreme Court decides Dillon v. United States.
Opinion here:
HUGE Supreme Court Victory under 924(c) and Remaining Constitutional Challenges to Mandatory Minimums. Attached
Supreme Court on LWOP for Juveniles and Civil Commitment for Federal Prisoners. Attachment
The Supreme Court released its opinion in Padilla v. Kentucky today, holding that as a matter of federal law, counsel must inform a client when his or her plea carries a risk of deportation.
Justice Stevens, writing for the majority (Justices Kennedy, Ginsburg, Breyer and Sotomayor) (Chief Justice Roberts and Justice Alito concurred in the judgment, Justices Scalia and Thomas dissented), analyzes the sad march of immigration laws over the past 90 years, concluding "[A]s a matter of federal law, deportation is an integral part -- indeed, sometimes the most important part -- of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes."  He further held that "[d]eportation as a consequence of a criminal conviction is, because of its close connection to the criminal process, uniquely difficult to classify as either a direct or a collateral consequence," and that advice regarding it thus falls within the Sixth Amendment's right to counsel.
Because "[i]mmigration law can be complex," "[w]hen the law is not succinct or straightforward, . . . a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences.  But when the deportation consequence is truly clear, as it was in this case [transportation of marijuana], the duty to give correct advice is equally clear."  The Court had no trouble finding that Mr. Padilla's counsel was constitutionally deficient in assuring him that he would not be deported for his conviction, and remanded to allow Mr. Padilla the opportunity to show prejudice.
We should all review our prior cases to see whether habeas relief may be available after Padilla.  In addition, at sentencing, we should all be arguing at sentencing for reduced sentences for our noncitizen clients, citing to Padilla's strong language about deportation being "an integral part" of the penalty they will face.
Congratulations to all those who argued on behalf of Mr. Padilla -- and to all of our clients, whose suffering from deportation has finally been recognized by the Supreme Court.
The Supreme Court just released its opinion in Johnson v. United States, no. 08-6925, reversing the Eleventh Circuit and finding that because the Florida offense of battery by offensive touching does not require the use of physical force, it does not qualify as an ACCA predicate under 924(e)(2)(B)(i).  http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/08-6925_PetitionerReply.pdf
No time to go into all the ins and outs of Johnson, but three points are worth noting.  First, the Court held that it was bound by the Florida Supreme Court's interpretation of the statutory elements of the offense,an important ruling for anyone dealing with state offenses that have been narrowed by the state's courts.  Second, the Court defined "physical force" for purposes of ACCA as requiring "violent force -- that is, force capable of causing physical pain or injury to another."  And third, the Court refused to remand to allow the government to argue that the battery satisfied 924(e)(2)(B)(ii)'s residual "otherwise" clause, because the government had previously disclaimed reliance on that provision at sentencing.
A huge and total victory for FD Donna Elm, AFPDs Jim Skuthan, Rosemary Cakmis, Lisa Call and Robert Godfrey, and the entire MD of Fla Defender office!!! 3/2/2010

Yesterday the Supremes heard a more interesting than usual argument in the O'Brien case, which involves the construction of 924(c) and the 30 year machine gun enhancement. Food for thought on several fronts. Justice Scalia and others were incredulous that the stat max can be life when Congress never said so, only that the sentence is at least whatever. Reminds me of the early ACCA litigation where we assumed that 15 years was the mandatory sentence -- the gov came back with Custis in rebuttal, but the stat max was not at issue in that case, which centered on whether we could collaterally attack prior convictions under the ACCA. The lesson is to always try to look at statutes with fresh eyes: Sometimes the emperor is wearing no clothes.

Another interesting piece is the spot on amicus for defenders that was devoted to Harris (Sixth Amendment does not apply to mandatory minimums as Apprendi applies to statutory maximums). I read the brief as wooing Justice Breyer to come out of his post-Apprendi Achilles sulk and embrace join the Sixth Amendment forces that accept the new paradigm. During argument, Justice Breyer seemed to have been channeled in the brief, saying his fifth Harris vote was only because he did not approve of Apprendi, and that Apprendi's logic inexorably applied to mandatory minimum sentences. Check this out: "But if it's a sentencing factor, then we get into the problem of Harris v. Apprendi. And then you have to decide whether it's maximum, minimum et cetera. But in Harris, I said that I thought Apprendi does cover mandatory minimums, but I don't accept Apprendi. Well, at some point I guess I have to accept Apprendi, because it's the law and has been for some time." He then asks whether we need to set for reargument on overturning Harris or whether it's sufficiently briefed. Message: Preserve Sixth Amendment (and Fifth Amendment indictment?) claims on mandatory minimum issues. Second message: Count noses.

Which leads to the last point. This case provides a great illustration of the need to engage in the plumbing work of statutory construction -- lots of linguistic tinkering in this argument -- layered with grand constitutional themes that make the statutory interpretation in the defendant's favor the default reading.

Great job by Jeff Fisher and the NAFD, NACDL, FAMM, and support crews. Here's the link if you want chapter and verse:


Below are links to the merits brief and the amicus brief filed in Barber v. Thomas, the good time case before the Supreme Court spearheaded by Steve Sady and Lynn Deffebach, who are counsel of record.  Amici include all Defenders, NAFD, FAMM NACDL, the ACLU, and Law School deans and faculty.  These are great briefs.



The Supreme Court granted cert in two cases that have been consolidated -- Abbott v. United States (09-479) and Gould v. United States (09-7073) -- to determine whether 924(c)(1)(A)'s prefatory phrase "[e]xcept to the extent that a greater minimum sentence is otherwise provided by this section or by any other provision of law" encompasses the underlying drug trafficking offense or crime of violence, and if not, whether it includes another offense for possessing the firearm in the same transaction.
The Third Circuit held in Abbott, 574 F.3d 203 (3rd Cir. 2009), that the defendant was subject to the mandatory consective sentence despite being sentenced to the 180-month mandatory minimum under ACCA because "a sentence imposed for a separate offense cannot supplant or abrogate a 924(c)sentence under the statute's prefatory clause."  The Fifth Circuit held in Gould, 329 Fed. Appx. 569 (5th Cir. 2009), that the defendant could be sentenced to the mandatory consecutive sentence under 924(c)(1)(A) despite also being subject to a greater mandatory minimum for the underlying drug trafficking crime.  Mr. Abbott is represented by attorneys from Robbins, Russell, Englert, Orseck & Untereiner and Mr. Gould is represented by attorneys from Jones Day.
Please make sure to raise and preserve objections to all 924(c) mandatory sentences while these cases are pending.  The pleadings for Abbot are already available at www.scotusblog.com, and the pleadings for Gould will likely be available there shortly.
Supreme Court Cert Grants: 924(c), SORNA and more! Memo 9/2009

Supreme Court issue a decision today in a civil deportation case that looks like it will have ramifications for Almendarez-Torres and the use of the Taylor/Shepard approach for certain aggravated felonies under 8 U.SC. 1101(a)(43) - used in 8 U.S.C. 1326 and 2L1.2. The Supreme Court held in Nijhawan v. Holder, No. 08-495, 2009 WL 1650167 (U.S. June 15, 2009) that certain “aggravated felonies” set forth in 8 U.S.C. § 1101(a)(43) contain no generic definition because no criminal statutes define the offense.  The offense at issue in Nijhawan was 8 U.S.C. § 1101(a)(43)(m)(i) (“an offense that involves fraud or deceit in which the loss to the victim or victims exceeds $10,000").  Others that the Court identified include 1101 (a)(43)(m)(ii) (specified offenses relating to tax evasion “in which the revenue loss to the Government exceeds $10,000") and 1101(a)(43)(k)(ii) (an offense “described in section 2421, 2422, or 2423 of Title 18 (relating to transportation for the purpose of prostitution) if committed for commercial advantage”). 2009 WL 1650167, at *6-7.

     For those offenses, the Court rejected the categorical approach in favor of a “circumstance-specific" approach, where the court will look to the "particular circumstances in which an offender committed the crime on a particular occasion.” Id. at 3. To avoid the constitutional concerns with using predicate convictions to enhance sentences where a predicate fact was never an element of the offense, the Court noted a government concession that in criminal cases it would have to prove to a jury the specific circumstances making the offense an
aggravated felony. Id. at 8.  

So, for priors that appear to fall within this "circumstance-specific" approach, you might want to argue that the government needs to plead and prove to a jury BRD the aggravated felony, whether used to increase the penalty under 8 U.S.C. 1326 or for the 8 level bump under 2L1.2

Great news!  The Supreme Court just unanimously held that the identity theft statute (18 USC section 1028A(a)(1)), which carries a two-year mandatory minimum, requires the government to prove that the defendant knew that the "means of identification" that s/he used, transferred or possessed actually belonged to another person.
The case is Flores-Figueroa v. United States.  Justice Breyer wrote the opinion, which started off by noting that ordinary English grammar suggests that the term "knowingly" applies to all of the statutory elements.  It rejected the government's focus on what the words necessarily imply (that is -- "John knowingly threw away the homework of his sister" does not necessarily imply that John knew the homework belonged to the sister) in favor of a test that looks at the words would ordinarily imply (that is -- that John knew whose homework it was).  It then noted that in criminal law, courts typically apply the required mens rea to every element in the statute. The Court entertained (and rejected) the government's legislative history argument without commenting on whether the statutory language was ambiguous.  It rejected the government's argument about the difficulty of proving such knowledge by reference to the "classic" identity theft case, which in the Court's opinion involves using someone's information to get access to their bank account or credit card.  Finally, the Court again reminded the government (and all of us!) that "concerns about practical enforceability are insufficient to outweigh the clarity of the [statutory] text."
Justice Scalia (joined by Justice Thomas) concurred in part and in the judgment.  Justice Scalia took issue with the Court's statement that courts typically apply the mens rea to all elements of a criminal statute.  He pointed out that he hasn't canvassed all the cases so didn't know if that was true and that he was not prepared to say that it should be true.  He also disagreed with the Court's legislative history discussion: "[t]he statute's text is clear, and I would reverse the judgment of the Court of Appeals on that ground alone."
Justice Alito also concurred in part and in the judgment, because he felt that the Court's point about ordinary English usage was overstated and that context was always the paramount indicator of meaning.  He noted that the language used in criminal statutes is often formulated differently from ordinary speech.  Justice Alito would start with a general presumption that the specified mens rea applies to all of the elements of the offense, but would also recognize that there are instances where context may rebut the presumption.  He would not join any part of the opinion that "may be read to adopt an inflexible rule of construction that can rarely be overcome by contextual features pointing to a contrary meaning."
The case resolves a circuit split, and overrules contrary precedent in the Fourth, Eighth, and Eleventh Circuits.  Its reasoning can also be used to renew challenges to other statutes in which courts have not applied the mens rea to all of the elements.  Justice Alito's concurrence gives the following examples, and we should all be on the lookout for more:
18 USC 2423(a), knowingly transporting an individual under the age of 18 with the intent that the person engage in criminal sexual activity, where courts have not required proof that the defendant knew the person's age;
21 USC 861(a)(1), knowingly enticing a person under the age of 18 to violate drug laws, where courts have not required proof that the defendant knew the person's age;
8 USC 1327, knowingly assisting an alien who is ineligible to enter the US because s/he has been convicted of an aggravated felony, where courts do not require proof that the defendant knew the alien had been convicted of an aggravated felony.
For the second time in less than a week, the Supreme Court has summarily reversed a federal appeals court for failing to strictly follow post-Booker sentencing law. Nelson v. United States, __ S.Ct. __, 2009 WL 160585 (Jan. 26, 2009).  Summary
In a strongly worded and important per curiam summary reversal today, the Supreme Court reaffirmed its holding in Kimbrough that "district courts are entitled to reject and vary categorically from the crack-cocaine Guidelines based on a policy disagreement with those Guidelines."  Summary
We won Cuellar, Jerry Beard's money laundering case, in which was decided unanimously (Justice Thomas writing) that 18 USC section 1956(a)(2)(B)(i) requires proof that the purpose of the transportation of funds was to conceal their nature, location, source, ownership or control. Jerry's client's conviction was reversed because he was transporting funds concealed in the floorboard of his vehicle for the purpose of paying the leaders of the criminal operation; the concealment was simply to allow him to achieve that purpose.

The Supreme Court also affirmed the judgment of the Seventh Circuit in U.S. v. Santos, which held that the word "proceeds" in 18 USC sections 1956(a)(1)(A)(i) and (h) applies only to criminal profits and not criminal receipts of payment. The justices were aligned strangely (Scalia, Souter, Thomas & Ginsburg in the plurality, Stevens concurring separately with different reasoning, and Roberts, Kennedy, Breyer Alito dissenting), and there are some very interesting discussions of the rule of lenity and double jeopardy. 6.2.08

The Supreme Court also issued an opinion by Justice Stevens in United States v. Ressam (07-455). The defendant was convicted of (1) knowingly giving false information to a customs official in violation of 18 U.S.C. § 1001 while attempting to enter the United States and (2) for carrying an explosive during the commission of that felony in violation of § 844(h)(2) after a search of his car revealed explosives in the trunk and spare tire well. The Court reversed the Ninth Circuit and held that the defendant was “carrying” those explosives “during” the commission of the false statement, finding that Congress "did not intend to require the Government to establish a relationship between the explosive carried and the underlying felony." Justice Thomas filed an opinion concurring in part and concurring in the judgment, in which Justice Scalia joined. Justice Breyer filed a dissenting opinion.
Mr. Ressam was valiantly represented by FPD Tom Hillier.  5.19.08

Today the Supreme Court issued its opinion in United States v. Rodriquez (06-1646), in which it addressed the question whether the “maximum term of imprisonment” for ACCA purposes under § 924(e)(2)(A)(ii) is determined with or without reference to recidivist enhancements. The Court reversed the Ninth Circuit, holding that the “maximum term of imprisonment . . . prescribed by law” for the state drug convictions at issue includes state recidivist enhancements, which in this case was a ten-year maximum. Justice Alito wrote for the majority; Justice Souter filed a dissenting opinion, in which Justices Stevens and Ginsburg joined.

The Court also issued an opinion by Justice Scalia in United States v. Williams (06-694), a case involving child pornography. The Court reversed the Eleventh Circuit and held that the pandering and solicitation provision at 18 U. S. C. § 2252A(a)(3)(B) is neither overbroad under the First Amendment nor impermissibly vague under the Due Process Clause. Justice Stevens filed a concurring opinion in which Justice Breyer joined. Justice Souter filed a dissenting opinion in which Justice Ginsburg joined.5.19.08

The Supreme Court today granted cert in Chambers v. United States, case number 06-11206, to decide the question we all had after reading Begay: whether a failure to report resulting in a conviction for escape "involves conduct that presents a serious potential risk of physical injury to another," and thus constitutes a "violent felony" under ACCA. In a pre-Begay decision, the Seventh Circuit held its nose and affirmed the district court's finding that it does, United States v.Chambers, 473 F.3d 724 (7th Cir. 2007). Congratulations to FD Phil Kavanaugh and AFPD Andrea Smith of the Southern District of Illinois for winning another shot (no pun intended) at getting their client relief from this unjust ACCA predicate! 4/2008

The following amendments were promulgated today (4-16). Effective dates are below. The immigration "amendment" addresses concerns that often arise in the 5th Cir concerning forcible sex as a violent crime (whether consent is given or not) and offer to sell drug. A departure can be considered if a quantity of drugs for personal use exceeds the usual amount or involves transportation of more than a personal amount. This is not required but is discretionary. In Texas, many drug offenses are resolved in the state with possession offenses, and so this addresses that practice, and transportation arises from California, where there are a number of sell, distribute and transport cases.

The Commission also finally acknowledges Booker, Rita, gall and Kimbrough in Chapter One, although in a very strange spin.
ImmigrationCrack Conversion, Chapter One.  4/2008

WE WON!!! The Supreme Court held today 6-3 that DUI is not a violent felony under ACCA!!!

The case: Begay v. United States (no. 06-11543)
The lawyers: AFPDs Margaret Katze & Chuck McCormack, FD Steve McCue
The assist: Defenders Supreme Court Resource & Assistance Panel (DSCRAP), in particular Amy Baron-Evans, Phil Lynch, Donna Coltharp and many others (you know who you are)
The amicus: National Association of Federal Defenders

Congratulations and thanks to all the members of the Defender community who pitched in to acheive this success and particularly to Margaret, Chuck and Steve who represented Mr. Begay so effectively throughout his case.

So that we don't get too comfortable, the Supreme Court also issued some crappy news today. In Burgess v. United States, case no. 06- 11429, the Court unanimously held that a "felony drug offense" for purposes of the sentence enhancements in 21 USC 841 includes state misdemeanor drug offenses that are punishable by more than one year. And in Baze v. Rees, case no. 07-5439, a deeply splintered court affirmed the judgment of the Kentucky Supreme Court, which held that lethal injection does not violate the Eighth Amendment because it does not create a substantial risk of wanton and unnecessary infliction of pain, torture, or lingering death.

Still, in the world of criminal defense, 1 out of 3 is fantastic -- especially when that 1 takes away an ACCA predicate. Well done all!

All opinions are available at http://www.scotusblog.com/wp/.
New Supreme Court Cert Grants.  Memo. 10/2007
Defender Amicus Brief in Kimbrough v. US.  Attached is the Supreme Court amicus brief filed in Kimbrough v. United States on behalf of the NAFD and the Federal Public and Community Defenders. 7/2007
Bowles v. Russell, Case No. 06-5306:

In an opinion written by Justice Thomas for 5 justices (guess who), the Supreme Court ruled that an appeals court has no jurisdiction to hear an appeal filed outside the applicable statutory period, even if the appeal was filed within the time period allowed by the district court's order. The petitioner, who is serving a sentence of 15 years to life for a murder conviction, had requested a 14-day extension on the time to appeal the district court's denial of his habeas petition. The district court's order "inexplicably" gave the petitioner 17 days to file his appeal. Petitioner filed his appeal before the deadline set forth in the court's order. Nonetheless, the Court held that statutory time periods for filing an appeal are jurisdictional and mandatory (as opposed to time periods established by court rule alone, which are not jurisdictional and thus can be relaxed in the court's discretion). In so holding, the Court overruled Harris Truck Lines, Inc. v. Cherry Meat Packers, Inc., 371 U.S. 215 (1962) and Thompson v. INS, 375 U.S. 384 (1964), which had recognized a "unique circumstances" equitable exception to filing deadlines.

Justice Souter opened a strongly worded dissent (joined by Justices Stevens, Ginsburg and Breyer) by asserting that precluding Petitioner's appeal after he relied on the district court's order was "intolerable" and that "there is not even a technical justification for condoning this bait and switch." Justice Souter argues that the majority opinion relies on cases issued years ago despite the fact that the Court has "deliberately" and "unanimously" spent the past 4 years "repudiating" that line of cases "as a misuse of the jurisdictional label," and states that by ignoring recent case law, the majority "leaves the Court incoherent."

Take home lesson: To quote the dissent, every court order should be read to contain an invisible warning: "Beware of the Judge." Double check those time periods contained in your orders.
-- Sara E. Noonan
Research & Writing Specialist
Sentencing Resource Counsel
Federal Public and Community Defenders
408 Atlantic Avenue 3d floor
Boston, MA 02110
(617) 790-2252 (direct)
(617) 223-8061 (main)
(617) 223-8090 (fax)
Attached is a release from the Supreme Court Public Information Office regarding the selection of the new Director of the Administrative Office of the United States Courts. 4.20.06
Supreme Court to Review Insanity Defense
(source: Associated Press) 12/2005




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