Supreme Court Review-Preview-Overview

An up-to-date outline of Supreme Court criminal cases
is available here. It covers pending cert grants and decisions from the past and current Terms. Other "cites" of interest are available here.

Monday, December 10, 2007

Watson: Not "Use" to Barter Drugs for Gun

In Watson v. U.S., No. 06-571 (Dec. 10, 2007), the Supreme Court held that a person who trades drugs for a gun does not "use" a firearm and is therefore not guilty of violating 18 U.S.C. § 924(c), which criminalizes use of a firearm during and in connection with a drug trafficking offense.
The Court noted that in ordinary English, a person who trades an object to acquire another uses the object that he parts with, but not the one he acquires: when a person pays a cashier at a cafeteria one dollar for a cup of coffee, the person "uses" the dollar bill, not the cup of coffee. The Court declined to import meaning from a neighboring statute which criminalizes the mere receipt of a firearm, pointing out that the two statutes speak to different issues.
The Court also rejected the argument that since it had construed § 924(c) to criminalize bartering guns for drugs, it made sense to symmetrically also punish bartering drugs for guns. The Court, however, said that it must respect the "language" of the statute, and left it to Congress to decide whether the language should be change to effectuate more symmetrical results.

Gall: Reasonableness Review is Deferential

In Gall v. U.S., No. 06-7949 (Dec. 10, 2007), the Supreme Court held that while the extent of the difference between a particular sentence and the recommended Guideline range is relevant, courts of appeal must review all sentences – whether inside, just outside, or significantly outside the Guidelines range – under a deferential abuse of discretion standard. The Eighth Circuit therefore erred when it reversed based only on its disagreement with Gall’s sentence. The Court specifically rejected the Eighth Circuit’s view that a variance requires "extraordinary" circumstances, and its application of a proportionality formula to determine whether a Guideline-variance is justified.
The Court noted that the district court committed no procedural error, because it adequately considered the § 3553(a) sentencing factors and adequately explained its sentence. Turning to substantive "reasonableness" review, Court found that the district court "quite reasonably attached great weight" to a number of factors in imposing a below-Guidelines sentence – Gall’s withdrawal from the conspiracy, his youthful age at the time he committed the offense, and his self-motivated rehabilitation. The Court noted that it is not for courts of appeal to decide de novo whether the justification for a variance is sufficient.

Kimbrough: Crack Guidelines Advisory Only

In Kimbrough v. U.S., No. 06-6330 (Dec. 10, 2007), the Supreme Court held that under Booker the crack cocaine Guidelines, like all other Guidelines, are advisory only. A district judge therefore may consider the crack/powder disparity when sentencing crack cocaine offenders, and impose a below-Guidelines sentence if a within-Guidelines sentence is "greater than necessary" to serve the objectives of sentencing set forth at 18 U.S.C. § 3553(a).
The Court rejected the government’s arguments that Congressional policy prohibits sentencing courts from disagreeing with the 100:1 ratio. The Court did not find support for this argument in Congress’ silence on this point, and noted that Neal v. U.S. was consistent with the view that Congressional statutes do not necessarily foreclose a different Guideline approach. The Court also noted that Congress recently acquiesced in the 2007 Guidelines which reduced the crack/powder disparity. The Court also rejected the argument that disagreements with the 100:1 ratio would increase sentencing disparities. The Court noted some departures from uniformity were a necessary result of its Booker decision. The Court further noted that the Sentencing Commission itself had reported that the 100:1 ratio created disproportionately harsh sanctions, thus lending support to the view that a Guidelines-based sentence would be "greater than necessary."
The Court concluded that Kimbrough’s sentence, 4.5 years below the bottom of the Guidelines range, was reasonable.

Tuesday, December 04, 2007

Logan: Civil Rights Never Lost are not "Restored"

In Logan v. U.S., No. 06-6911 (Dec. 4, 2007), the Supreme Court held that the ACCA provision which instructs sentencing courts to disregard a prior conviction if a defendant’s civil rights have been "restored" does not apply if, under the state law governing the prior conviction, the defendant retained his civil rights at all times.
The Court noted that the word "restored" describes a measure by which the government relieves an offender of some of the consequences of his conviction.
The Court acknowledged Logan’s argument that a literal reading of the statute would produce the "anomalous" result that those who never lost their civil rights could later be sentenced more harshly than those who did. The Court pointed out, however, that Logan’s reading of the statute would create its own anomalies, for example, dangerous recidivists who never lost their civil rights would be treated more leniently than less dangerous offenders who did. The Court noted that the anomalies resulted from the statute, which looked to the differing laws and policies of the several states. Logan’s reading would also undercut the statute’s express intent to include misdemeanor offenders within its potential scope. Finally, the Court pointed to a more recent Congressional statute which clarified the point, and cast doubt on Logan’s reading.

Thursday, August 23, 2007

Government Brief Filed in Gall

The Solicitor General has filed the government's brief in Gall, arguing that Mr. Gall's probationary sentence is unreasonably lenient under proportionality review, which it contends is the appropriate standard in appeals of below-guidelines sentences.

Friday, July 27, 2007

Gall & Kimbrough Briefs Filed

A host of remarkable briefs have been filed in the two pending sentencing guidelines cases addressing reasonableness review, Gall v. United States and Kimbrough v. United States. I have a number of them, which you can access for your weekend reading pleasure. Merits briefs in Gall and Kimbrough. Two amicus briefs by the Federal Public & Community Defenders and National Association of Federal Defenders, one in Gall and the other in Kimbrough. Plus FAMM was a friend to Gall, while NACDL was a friend to both. The Sentencing Project and the Center for the Study of Race and Law, ACLU and NAACP-LDF joined to support Kimbrough. Washington Legal Foundation and NYCDL supported Gall. Briefing is diverse and well-crafted, covering the very broad spectrum of issues and concerns these two cases bring to the Court.

Thursday, July 05, 2007

Panetti: Remand for Ford Mental Illness Review

In Panetti v. Quarterman, No. 06-6407 (June 28, 2007), the Supreme Court reversed the denial of habeas relief to a Texas inmate sentenced to death despite his well-documented history of mental illness.
The Court first held that the limitation on "second and successive" habeas petitions did not require dismissal of Panetti’s claim that his mental illness rendered him incompetent to be executed, because Panetti raised the claim as soon as it was ripe – and it became ripe after he had filed his first habeas petition.
Turning to the merits, the Court found that the state courts failed to give Panetti an opportunity to present his expert evidence on his mental condition. The Court further held that the Fifth Circuit had applied too restrictive an interpretation of Ford v. Wainwright, 477 U.S. 399 (1986), when it found that Panetti’s ability to link his punishment to his crime defeated the claim of mental illness. The Court stated that Ford required that the defendant have a rational understanding of the State’s rationale for executing him. The Court therefore remanded the case to develop an evidentiary record on whether Panetti met the Ford criteria.

Thursday, June 21, 2007

Rita: Presumption of Reasonableness for Guideline Sentences

In Rita v. U.S., No. 06-5754 (June 21, 2007), the Supreme Court held that a court of appeals may apply a presumption of reasonableness to a district court sentence within the Guidelines.
The Court noted that the presumption was not binding, and did not reflect judicial deference to the fact-finding leeway of an expert agency. Rather, it reflected the fact that the sentencing court’s analysis of the sentencing factors set forth at 18 U.S.C. § 3553(a) corresponded to the similar analysis by the Sentencing Commission. The presumption only applies on appellate review. It does not apply when a district court determines the merits of arguments that a non-Guideline sentence ought to be applied.
The Court explained that the presumption would not violate the Sixth Amendment because it neither requires nor forbids a Guideline sentence.
Finally, the Court held that the district court properly analyzed the factors in Rita’s case. The Court stated that the brevity or length of what a district court had to say when pronouncing sentence was left to a judge’s own professional judgment. The judge may say less when imposing a Guideline sentence, and normally should go further when rejecting nonfrivolous arguments for a non-Guideline sentence.

Monday, June 18, 2007

Brendlin: Passenger has 4th Amendment standing

In Brendlin v. California, No. 06-8120 (June 18, 2007), the Supreme Court held that when police make a traffic stop, a passenger in the car, like the driver, is seized for Fourth Amendment purposes and may challenge the stop’s constitutionality.
The defendant was a passenger in a vehicle that had been pulled over without reason to believe that it was being operated unlawfully, that is, without probably cause or reasonable suspicion to make the stop. A search of the defendant revealed his possession of drug paraphernalia. The defendant moved to suppress, but the California Supreme Court held that suppression was unwarranted because no additional circumstances indicated to a reasonable passenger that he was the subject of the police investigation.
Reversing, the Supreme Court noted that the relevant inquiry was whether a reasonable person would feel free to terminate the encounter. Here, Brendlin would not have felt free to terminate the encounter, because any reasonable passenger would have understood the officers to be exercising control to the point where no one in the car was free to depart without police permission. The Supreme Court rejected the reasoning that the police only intended to investigate the driver of the vehicle, not the passenger, noting that for Fourth Amendment analysis, subjective intent of the police is irrelevant; the relevant objective inquiry was the understanding of a reasonable passenger.

Tuesday, May 22, 2007

Four New Death Cases: Schriro, Smith, Brewer & Abdul-Kabir

In Schriro v. Landrigan, No. 05-1575 (May 22, 2007), the Supreme Court held that the district court did not err in denying an evidentiary hearing regarding whether counsel gave ineffective assistance at a capital sentencing, when the defendant opposed counsel putting on mitigating evidence and interrupted counsel when he attempted to do so. The Court found that regardless of what further mitigating evidence counsel might have discovered, the defendant would have opposed counsel’s attempt to present it to the jury. Hence, no ineffective assistance occurred.
In Smith v. Texas, No. 05-11304 (Apr. 25, 2007), Brewer v. Quaterman, No. 05-11287 (Apr. 25, 2007), and Abdul-Kabir v. Quaterman, No. 05-11284 (Apr. 25, 2007) the Supreme Court reversed the denial of federal habeas relief to three Texas death row inmates. In each case, contrary to Penry v. Lynaugh, 492 U.S. 302 (1989), the Texas courts had sentenced a defendant to death without giving the jury instructions enabling them to give effect to a defendant’s mitigating evidence. In each the Fifth Circuit found the error harmless because other instructions enabled the jury to give effect to the mitigating evidence introduced by the defendant . Reversing, the Supreme Court held that the Texas court holdings were clearly contrary to Penry.

Friday, April 20, 2007

James: Florida Attempted Burglary is Violent Felony

In James v. U.S., No. 05-9264 (April 18, 2006), the Supreme Court held that the offense of attempted burglary, as defined by Florida law, qualifies as a "violent felony" for purposes of the 15-year mandatory minimum of 18 U.S.C. § 924(e).
The Court noted that the statutory definition of "violent felony" did not exclude attempt offenses. The Court further noted that the list of enumerated offenses which qualified as a "violent felony" was not exhaustive. Hence, the issue of whether attempted burglary under Florida law qualified as a "violent felony" depended on whether it "involves conduct that presents a serious potential risk of physical injury to another."
The Court found that the Florida Supreme Court’s decision interpreting the attempted burglary statute made it clear that merely preparatory activity, such as acquiring burglars’ tools or casing a structure, is not enough to be guilty of the offense. An overt act is required. This overt act poses a risk akin to the risk posed by a completed burglary. The main risk of burglary arises not from the simple physical act of wrongfully entering another’s property, but from the possibility that an innocent person might confront the burglar during the crime. Attempted burglary poses the same kind of risk.
The Court rejected James’ reliance on Taylor v. U.S., 495 U.S. 575 (1990). Taylor did not require an offense to present a risk of physical injury to others in every case, but only in "the ordinary case."
Finally, the Court held that even if Florida law defines burglary to encompass a dwelling to include not only a structure but the curtilage thereof, and therefore does not involve entry into a structure, the risk posed by attempted burglary still qualified under § 924(e). A typical reason for enclosing the curtilage adjacent to a structure is to keep out unwanted visitors – especially those with criminal motives. Thus, an attempted entry poses a risk of physical injury.
those with criminal motives. Thus, an attempted entry poses a risk of physical injury.

Monday, March 05, 2007

Whorton: No Retroactivity for Crawford

In Whorton v. Bockting, No. 05-595 (Feb. 28, 2007), the Supreme Court held that it gave no retroactive effect to its Confrontation Clause holding in Crawford v. Washington that testimonial statements of witnesses absent from a trial are admissible only where the declarant is unavailable and only where the defendant has had a prior opportunity to cross-examine the witness.
The Court first noted that Crawford was not an "old" rule, but a "new" rule, as evidenced by the fact that Crawford explicitly overruled Ohio v. Roberts. Thus, as a new rule, Crawford would only apply retroactively if it was a watershed rule that implicated the fundamental fairness and accuracy of judicial proceedings. The Court held that Crawford did not so quality.
First, the hearsay that is now admissibile under Crawford did not, when introduced at trial, create an impermissibly large risk of inaccurate convictions. It is not comparable to Gideon, the rule that entitled a defendant to representation by counsel. The Court noted that it was "unclear" whether Crawford increased or decreased the reliability of trial verdicts, because it eliminated Confrontation Clause protection against out-of-court nontestimonial statements.
Second, Crawford did not alter the bedrock procedural elements essential to the fairness of a criminal proceeding. Crawford, while important, did not institute a "sweeping" change.

Tuesday, February 20, 2007

Lawrence: AEDPA not tolled during federal certiorari appeal of final state decision

In Lawrence v. Florida, No. 05-8820 (Feb. 20, 2007), <http://supremecourtus.gov/opinions/06pdf/05-8820.pdf> the Supreme Court affirmed the Eleventh Circuit’s holding that a federal habeas petitioner’s habeas petition was untimely, because the time after the final determination of the Florida state courts, during which the petitioner was seeking (unsuccessfully) certiorari review in the United States Supreme Court, did not toll the one-year statute of limitations for federal habeas petitions.
The Court held that once a State’s highest court has denied, as here, the final appeal of a state court’s denial of state post-conviction relief, the state courts have conclusively spoken on the matter. The subsequent federal certiorari proceeding is a separate proceeding. The final resolution in the state courts has occurred, and the tolling period does not continue to run because no state proceeding is "pending."

Monday, February 12, 2007

Rita and Claiborne Reply Briefs Filed

With oral argument just days away, petitioners filed their reply briefs, which can be found here: Rita and Claiborne.

Monday, January 22, 2007

Government & Friends File Rita & Claiborne Briefs

On the heels of the Court's Cunningham decision earlier today, the Solicitor General filed the government's briefs in Rita and Claiborne. In case the SG missed something, the U.S. Sentencing Commission weighed in, adding its self-defense by filing an amicus brief for both cases. Three prominent Senators -Kennedy, Hatch and Feinstein - filed as amici in support of affirmance in the Claiborne case. In addition to briefs, the government filed appendices, including relevant constitutional and statutory provisions and separate statistical analysis in appendix 31a and 32a. The petitioner's filings and their amicus briefs were collected here last month. Oral argument will occur February 20. Preparation of reply briefs and moot courts will fill counsels' days between now and then.

Cunningham: California's DSL Struck Down

In Cunningham v. California, No. 06-6551 (Jan. 22, 2007), the Supreme Court held that California’s determinate sentencing law (DSL) violates the rule of Apprendi, because it authorizes a judge to enhance a sentence based on aggravating facts found by the judge, not the jury. California’s DSL provides for a middle term and upper term sentence, with the middle term being applicable unless a judge found aggravating facts, in which case the judge was authorized to impose the upper term.

The Court noted that, like the sentencing schemes it had previously struck down, California’s DSL authorized judges to increase sentences based on findings of facts by judges.

The Court rejected the argument that the upper term of a possible sentence, not the middle term, should be viewed as the maximum for constitutional purposes. The Court noted that the jury’s verdict alone would not authorize a sentence above the middle term.

The Court also rejected the argument that California’s DSL survived scrutiny because it preserved jury fact finding for some enhancements. The Court noted that Apprendi established a "bright line rule."

The Court also rejected the attempt to equate California’s DSL with the post-Booker advisory regime of the Federal Sentencing Guidelines. The Court found that the upper limit provision of California’s DSL was not a "reasonableness constraint." Further, the reasonableness constraint is not a substitute for Sixth Amendment constraints, but a requirement for the federal system to operate within constitutional constraints: "Booker’s remedy for the Federal Guidelines, in short, is not a recipe for rendering this Court’s Sixth Amendment case law toothless." The majority noted that two pending federal cases, Claiborne and Rita, [discussed here] will address the federal reasonableness standard created by Booker. The only dissenters were Justices Kennedy, Breyer and Alito. Chief Justice Roberts joined the majority decision; together with Justice Ginsburg, and the four Booker-remedial dissenters, they formed a new and stronger majority on Apprendi-Blakely jurisprudence that may foretell a different path than originally appeared post-Booker.

Jones v. Bock: PLRA Exhaustion

Jones v. Bock, 127 S. Ct. ___ (Jan. 22, 2007). Local circuit rules that require an inmate to plead and prove exhaustion in his initial complaint are not required by the Prison Litigation Reform Act. Indeed, Chief Justice Roberts wrote for a unanimous Court, such rules exceed the permissible scope of the PLRA because the exhaustion question is not a pleading requirement, but rather it is an affirmative defense to be raised first by the respondent. Also, the Court held, exhaustion does not require that the inmate name the offending official, nor does the person named in the lawsuit have to have been named at each stage of the exhaustion process. In addition, the Court held that when a petitioner brings a mixed petition with only some exhausted claims, the trial court may not simply dismiss the petition; it must entertain the exhausted claims, while setting the unexhausted claims aside.

Friday, January 19, 2007

Brendlin v. California - 4th Amendment cert grant

Seizure of Passenger in Vehicle During Traffic Stop. Brendlin v. California, 127 S. Ct. ___ (cert. granted Jan. 19, 2007); decision below at 136 P.3d 845 (Cal. 2006) (en banc). Defendant was a passenger in a vehicle driven by another that was subjected to a traffic stop. A search of the vehicle incident to the stop yielded contraband. The passenger entered a negotiated plea of guilty to manufacturing methamphetamine following denial of his motion to suppress the seized evidence The California Court of Appeal reversed, finding that defendant, as a passenger, could challenge the traffic stop, and that the traffic stop was unlawful. The California Supreme Court overruled the Court of Appeal, holding that a passenger in a vehicle stopped by police is not seized as a constitutional matter in the absence of additional circumstances that would indicate to a reasonable person that he was the subject of officer’s investigation or show of authority. The U.S. Supreme Court granted certiorari to review the question: Is a passenger in a vehicle stopped by police seized as a constitutional matter in the absence of additional circumstances that would indicate to a reasonable person that he was the subject of officer’s investigation or show of authority?

Tuesday, January 16, 2007

Joseph v. US: Jury Consideration of Voluntariness of Confession

Joseph v. United States, 127 S. Ct. ___ (cert. denied Jan. 16, 2007); decision below unpublished (3d Cir. 2006). The district court admitted defendant’s confession at trial, but refused to give a jury instruction required by the third sentence of 18 U.S.C. § 3501(a): "If the trial judge determines that the confession was voluntarily made it shall be admitted in evidence and the trial judge shall permit the jury to hear relevant evidence on the issue of voluntariness and shall instruct the jury to give such weight to the confession as the jury feels it deserves under all the circumstances." The Court of Appeals reasoned that this entire subsection was invalidated by Dickerson v. United States, 530 U.S. 428 (2000), which explicitly invalidated the first sentence of 3501(a) (Congressional attempt to overrule Miranda v. Arizona). Cert was denied in this case, but Justice Stevens issued this clarifying statement: "In Dickerson v. United States, 530 U. S. 428 (2000), we held that the first sentence of 18 U. S. C. §3501(a) is unconstitutional. In this case the Court of Appeals affirmed the District Court’s rejection of the petitioner’s request for an instruction relating to the voluntariness of her confession—an instruction that the third sentence of §3501(a) requires. The Court of Appeals reasoned that Dickerson had invalidated all of §3501 and not just the first sentence. As the Solicitor General concedes, that holding was erroneous. While I am persuaded that the arguably harmless character of the trial judge’s error provides a proper reason for denying the petition for certiorari, I think it important to note that our denial does not endorse the incorrect reasoning in the opinion of the Court of Appeals."

Tuesday, January 09, 2007

Burton v. Stewart: Retroactivity of Blakely

Burton v. Stewart, 127 S. Ct. ___ (2007). Burton received an exceptional sentence of 258 months above the 305 month ceiling of the statutory range. The sentence became final after Apprendi v. New Jersey but before Blakely v. Washington. Questions presented: (1) Is the holding in Blakely a new rule or is it dictated by Apprendi? (2) If Blakely is a new rule, does its requirement that facts resulting in an enhanced statutory maximum be proved beyond a reasonable doubt apply retroactively? Rather than answer these questions, the Court issued a per curiam decision holding that the district court lacked jurisdiction to hear the habeas corpus petition because it had not been filed as required by the AEDPA gateway; this was a second or successive petition for which permission had not been granted under 28 U.S.C. § 2244(b). The per curiam decision reversed all proceedings and held that the habeas proceeding must be dismissed, leaving the questions raised to be answered in the future.

US v. Resendiz-Ponce: Omitting Elements from Indictment

United States v. Resendiz-Ponce, 127 S. Ct. ___ (Jan. 9, 2007). Cert petition by government to determine whether the omission of an element of a criminal offense from a federal indictment can constitute harmless error. Here, the indictment for unlawful reentry failed to allege an overt act, an essential element of the crime, and Ninth Circuit precedent therefore dictated that the conviction must be reversed even though the government presented uncontested proof of an overt act at trial. After oral argument, the Court asked for additional briefing on the underlying question: Was the indictment defective? Rather than answer the government’s question on harmless error, the Court (Stevens, J.) held there had been no error at all, since the indictment was not defective. This obviated the need to decide the harmless error issue. Justice Scalia dissented, contending that the indictment was defective and that left him as the only justice willing to address the original question. "Since the full Court will undoubtedly have to speak to the point on another day (it dodged the bullet today by inviting and deciding a different constitutional issue—albeit, to be fair, a narrower one) there is little use in my setting forth my views in detail. It should come as no surprise, given my opinions in United States v. Gonzalez-Lopez, 548 U.S. ___ (2006), and Neder v. United States, 527 U.S. 1, 30 (1999) (opinion concurring in part and dissenting in part), that I would find the error to be structural."