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, June 08, 2009

Boyle v. United States: Not much structure needed for RICO

The Supreme Court held that an association-in-fact enterprise under RICO, 18 U.S.C. § 1962(c), must have a "structure," but it need not be, as Boyle sought the jury to be instructed in his bank robberies case, "an ascertainable structure beyond that inherent in the pattern of racketeering activity in which it engages." The "structure" contemplated by the RICO statute has three features: a purpose, relationships among the associates, and longevity sufficient to permit the associates to pursue the enterprise’s purpose. The Court rejected Boyle’s argument the structure required additional features, such as a hierarchical structure or a chain of command. The Court also rejected the argument that its construction would create a merger of the RICO § 1962(c) crime with other federal offenses, pointing out that, in relation to conspiracy, it demands "much more" than proof of a "brief" agreement.

Monday, June 01, 2009

Bobby v. Bies: No Double Jeopardy bar on mental capacity in death cases

A State court’s determination that a defendant’s mental retardation was a mitigating factor in the penalty phase of a capital case does not trigger Double Jeopardy issue preclusion, and foreclose the question whether, in the wake of the subsequently-decided decision in Atkins v. Virginia, the defendant is ineligible for the death penalty because he is mentally retarded.

Tuesday, May 26, 2009

Montejo v. Lousiana: Michigan v. Jackson overruled leaving an interrogation free-for-all

An inculpatory statement given by a defendant to police after the court ordered the appointment of counsel may be introduced at trial as evidence against him. In so holding, the Court overruled Michigan v. Jackson, which presumed that a waiver of the right to counsel was invalid once counsel was appointed at arraignment, and did not require the defendant to invoke the right to counsel. The Court explained that the protections of Miranda, Edwards and Minnick v. Mississippi, sufficed to protect defendants against police badgering that induced them to waive the right to counsel. Under Miranda, the suspect must be advised of his right to counsel. Under Edwards, once a defendant has invoked the right to counsel, interrogation must stop. Under Minnick, no subsequent interrogation may take place until counsel is present. These protections meant that Michigan v. Jackson’s additional prophylactic layer would not be justified by the additional costs of invalidating confessions and letting criminals go free. The Court noted that, on remand, Montejo would be free to argue that he had made a clear assertion of the right to counsel prior to interrogation, and that the subsequent interrogation therefore violated Edwards v. Arizona. Montejo would also be free to argue that any waiver was involuntary because it was based on misrepresentations by police as to whether he was appointed a lawyer.

Abuelhawa v. United States: Drug Telephone Counts Punish Sales Not Purchases

Whether the use of a telephone to buy drugs for personal use "facilitates" the commission of a drug "felony," in violation of 21 U.S.C. § 843(b), on the theory that the crime facilitated by the buyer is not his purchase of drugs for personal use (a misdemeanor), but is the seller’s distribution of the drugs to him (a felony). The Court answered in the negative, holding that using a telephone to make a misdemeanor drug purchase does not "facilitat[e]" felony drug distribution in violation of §843(b). Stopping with the plain meaning of "facilitate" here would ignore the rule that because statutes are not read as a collection of isolated phrases, "[a] word in a statute may or may not extend to the outer limits of its definitional possibilities." Dolan v. Postal Service, 546 U. S. 481. Here it does not.

Monday, May 04, 2009

Flores-Figueroa v. United States: "Knowingly" applies to all elements of aggravated identity theft law

The federal aggravated identity theft statute, 18 U.S.C. § 1028A(a)(1), prescribes a mandatory two-year term of imprisonment for any person who, "during and in relation to" certain other specified crimes, "knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person." Flores-Figueroa, a Mexican native, worked at a steel plant in East Moline, Ill. He was accused of using a phony Social Security card and a phony alien registration card. The two numbers on those cards had been assigned to someone else; he argued that the enhanced mandatory minimum sentence contained in § 1028A(a)(1) did not apply to him because he used the documents without knowing the numbers were actual numbers assigned to another person. He was convicted and sentenced to 75 months in prison, including a consecutive 24 month enhancement required 1029A(a)(1). The Eighth Circuit Court upheld the sentence, concluding that it was not necessary to show that Flores-Figueroa knew he was using another person’s identifying information. In an opinion by Justice Breyer, the Supreme Court reversed, 9-0, holding that ordinary English grammar suggests that the term "knowingly" applies to all of the statutory elements. The court 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 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 found 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, taking 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 offers the following examples: 18 U.S.C. § 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 U.S.C. § 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 U.S.C. § 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). [Adapted from summary by Sara Noonan].

Wednesday, April 29, 2009

Dean v. United States: Accidental discharge sufficient for 924(c) sentencing enhancement

Dean’s gun accidentally discharged during a bank robbery, but no one was harmed. Dean was convicted of conspiring to commit a bank robbery and discharging a firearm during an armed robbery. Because the firearm was "discharged" during the robbery, he was sentenced pursuant to 924(c)(1)(A)(iii) to a 10-year mandatory minimum prison term. He appealed, contending that the discharge was accidental, and that 924(c)(1)(A)(iii) requires proof that the defendant intended to discharge the firearm. The Eleventh Circuit affirmed, holding that no proof of intent is required. The Supreme Court affirmed, holding that § 924(c)(1)(A)(iii) requires no separate proof of intent. The 10-year mandatory minimum applies if a gun is discharged in the course of a violent or drug trafficking crime, whether on purpose or by accident.

Kansas v. Ventris: Exclusionary rule unnecessary to protect against Sixth Amendment violation through jailhouse snitch

Ventris was charged with murder and other crimes. The state planted another defendant in his cell as a "human listening device," even though Ventris’ right to counsel had attached. Predictably, Ventris made incriminating statements to his cellmate. The state later conceded that it violated Ventris’ Sixth Amendment right to counsel when it surreptitiously planted the snitch in Ventris’ jail cell. The state was prohibited from using the confession in its case-in-chief, but was allowed to use it to impeach Ventris’ own testimony at trial. Kansas held that such use was impermissible under the federal exclusionary rule and conceded that it had violated Ventris’ Sixth Amendment rights. The Supreme Court held 7-2 that this violation did not require exclusion of the informant’s testimony when offered for purposes of impeachment, reasoning that the Sixth Amendment violation occurred when the uncounseled interrogation was conducted, not at trial The question whether to exclude the statement at trial was a separate question, involving the "remedy" for the violation. The Court concluded that the interest in exclusion was outweighed by the need to prevent perjury and the integrity of the trial process. The Court found little appreciable police deterrence would occur as a result of exclusion because police, if they opted to obtain uncounseled statements, could not likely anticipate that the defendant would testify at trial, and would testify inconsistently with the prior uncounseled statement. Ominously, the Court refused to confirm Kansas’s concession of a Sixth Amendment violation, opening a wide door in future cases for the state or federal government to argue that no constitutional violation occurs where police obtain a voluntary statement by way of a jailhouse snitch.

Tuesday, April 28, 2009

Cone v. Bell: No defaults in habeas despite state court holdings to contrary

After the State discredited Cone’s defense that he killed two people while suffering from acute psychosis caused by drug addiction, he was convicted and sentenced to death. The Tennessee Supreme Court affirmed on direct appeal and the state courts denied postconviction relief. Later, in a second petition for state postconviction relief, Cone raised the claim that the State had violated Brady v. Maryland by suppressing witness statements and police reports that would have corroborated his insanity defense and bolstered his case in mitigation of the death penalty. The state postconviction court denied him a hearing on the ground that the Brady claim had been previously determined, either on direct appeal or in earlier collateral proceedings. The state court of appeals affirmed. Cone filed a petition for a federal writ of habeas corpus, which was denied on two grounds, (1) The Brady claim was procedurally barred because the state courts’ disposition rested on adequate and independent state grounds that Cone had waived it by failing to present his claim in state court; (2) Even if he had not defaulted the claim, it would fail on its merits because none of the withheld evidence would have cast doubt on his guilt. The Sixth Circuit agreed with second point, but considered itself barred from reaching the claim’s merits because the state courts had ruled the claim previously determined or waived under state law. The Supreme Court reversed, holding that the state courts’ rejection of Cone’s Brady claim does not rest on a ground that bars federal review. Neither of the State’s asserted justifications for such a bar–that the claim was decided by the State Supreme Court on direct review or that Cone had waived it by never properly raising it in state court–provides an independent and adequate state ground for denying review of Cone’s federal claim. The state court’s denial of the Brady claim on the ground it had been previously determined in state court rested on a false premise: Cone had not presented the claim in earlier proceedings and, consequently, the state courts had not passed on it. The Sixth Circuit’s rejection of the claim as procedurally defaulted because it had been twice presented to the Tennessee courts was thus erroneous. The Supreme Court found unpersuasive the State’s alternative argument that federal review is barred because the Brady claim was properly dismissed by the state courts as waived. Those courts held only that the claim had been previously determined, and the Supreme Court would not second-guess their judgment. Because the claim was properly preserved and exhausted in state court, it is not defaulted. Although the Court did not believe that the withheld evidence sustained Cone’s insanity defense at the guilt phase, it did hold the lower federal courts failed to adequately consider whether the withheld documents were material to Cone’s sentence. Both the quantity and quality of the suppressed evidence lend support to Cone’s trial position that he habitually used excessive amounts of drugs, that his addiction affected his behavior during the murders, and that the State’s contrary arguments were false and misleading. Because the suppressed evidence might have been material to the jury's assessment of the proper punishment, a full review of that evidence and its effect on the sentencing verdict is warranted.

Tuesday, April 21, 2009

Arizona v. Gant: Restricting searches of recently occupied vehicles

Police officers went to a house suspected of being used for narcotics activity. One officer knocked on the door, and Rodney Gant answered the officer’s knock on the door. The officers asked to speak with the homeowner, but Gant told them that the owner was not at home and would not return until later that day. Gant gave the officers information about his identity. The officers left and ran a records check on Gant and discovered that his license was suspended and that he had an outstanding warrant for driving with a suspended license. The officers returned to the house that evening, finding two individuals outside the house. After investigation, they were arrested. While the officers were handcuffing the individuals and placing them in patrol cars, Gant drove up in his car and parked in the driveway. One officer summoned Gant as he got out of his car, and Gant walked approximately 8-12 feet toward the officer. The officer told Gant that he was under arrest for driving with a suspended license, handcuffed him, and placed him in a patrol car. Officers then searched the passenger compartment of Gant’s car and found a plastic baggie containing cocaine. Gant was charged with one count of possession of a narcotic drug for sale and one count of possession of drug paraphernalia. The Arizona trial court denied his motion to suppress the evidence, and he was convicted of drug offenses. The state Supreme Court reversed, distinguishing New York v. Belton, 453 U. S. 454–which held that police may search the passenger compartment of a vehicle and any containers therein as a contemporaneous incident of a recent occupant's lawful arrest–on the ground that it concerned the scope of a search incident to arrest but did not answer the question whether officers may conduct such a search once the scene has been secured. Because Chimel v. California, 395 U.S. 752 , requires that a search incident to arrest be justified by either (a) the interest in officer safety or (b) the interest in preserving evidence, and the circumstances of Gant’s arrest implicated neither of those interests, the state Supreme Court found the search unreasonable. The U.S. Supreme Court affirmed, holding that police may search the passenger compartment of a vehicle incident to a recent occupant’s arrest only if it is reasonable to believe that the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest. Warrantless searches "are per se unreasonable," "subject only to a few specifically established and well-delineated exceptions." Katz v. United States, 389 U. S. 347 . The exception for a search incident to a lawful arrest applies only to "the area from within which [an arrestee] might gain possession of a weapon or destructible evidence." Chimel, 395 U. S., at 763. The Court rejected a broad reading of Belton that would permit a vehicle search incident to a recent occupant’s arrest even if there were no possibility the arrestee could gain access to the vehicle at the time of the search. The safety and evidentiary justifications underlying Chimel’s exception authorize a vehicle search only when there is a reasonable possibility of such access. Although it does not follow from Chimel, circumstances unique to the automobile context also justify a search incident to a lawful arrest when it is "reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle." Thornton v. United States, 541 U. S. 615 (Scalia, J., concurring in judgment). Neither Chimel’s reaching-distance rule nor Thornton’s allowance for evidentiary searches authorized the search in this case. In contrast to Belton, which involved a single officer confronted with four unsecured arrestees, five officers handcuffed and secured Gant and the two other suspects in separate patrol cars before the search began. Gant clearly could not have accessed his car at the time of the search. An evidentiary basis for the search was also lacking. Belton and Thornton were both arrested for drug offenses, but Gant was arrested for driving with a suspended license–an offense for which police could not reasonably expect to find evidence in Gant’s car. The search in this case was therefore unreasonable. In the end the Court was unpersuaded by the State’s argument that an expansive reading of Belton correctly balances law enforcement interests with an arrestee’s limited privacy interest in his vehicle. The Court found that the state seriously undervalues the privacy interests at stake, and it exaggerates both the clarity provided by a broad reading of Belton and its importance to law enforcement interests. A narrow reading of Belton and Thornton, together with the Court’s other Fourth Amendment decisions, e.g., Michigan v. Long, 463 U. S. 103 , and United States v. Ross, 456 U. S. 798, permit an officer to search a vehicle when safety or evidentiary concerns demand. Finally the court held that stare decisis does not require adherence to a broad reading of Belton, because 28 years of experience has proved that the assumption underpinning that case is unfounded, authorizing "myriad unconstitutional searches."

Monday, April 06, 2009

Corley v. United States - Presentment Delay Still Subject to McNabb-Mallory, as Limited by 3501

Title 18 U.S.C. § 3501 – read together with Fed. R. Crim. P. Rule 5(a), McNabb v. United States, 318 U.S. 332 (1943), and Mallory v. United States, 354 U.S. 449 (1957) – requires that a confession taken more than six hours after arrest and before presentment be suppressed if there was unreasonable or unnecessary delay in bringing the defendant before the magistrate judge. Section 3501 modified McNabb-Mallory but did not supplant it. Johnnie Corley was convicted of bank robbery. The only evidence introduced at trial identifying Mr. Corley as a participant in the robbery consisted of two statements law enforcement obtained from him more than six hours after his arrest, and before he was brought to a federal magistrate. Mr. Corley did not see the magistrate until nearly 30 hours after his arrest. The sequence of events began when Corley was arrested at 8:00 a.m. on September 17, 2003, after federal and state law enforcement identified him as a suspect in the bank robbery. He was arrested on an outstanding bench warrant from state court. During the arrest, Corley resisted and had a physical altercation with an FBI agent. As a result, he was placed under federal arrest for assault on a federal officer and taken to a local police station for processing. At 11:45 a.m., he was taken from the police station to a hospital in Philadelphia, where he was admitted at 12:12 p.m. He received five sutures and was discharged at 3:20 p.m. Corley was next brought to the FBI office in Philadelphia, arriving at 3:30 p.m. Although the FBI offices are located in the same building as the federal magistrate judges’ courtrooms and chambers, he was not presented to a federal magistrate judge. Instead, he was kept in the FBI offices for interrogation regarding the bank robbery. By this point, 7 ½ hours had already elapsed since his arrest. The only apparent reason for the delay in presentment following the hospital discharge was the agents’ desire to question Corley. At 5:07 p.m. – still without being presented to a magistrate judge, and after being informed he was under arrest for assault on a federal officer and under investigation for bank robbery – Corley signed a waiver of rights form. He confessed shortly afterwards, but when asked to put his confession in writing, said that he was tired and asked to continue the following day. The interrogation resumed at 10:30 a.m. on September 18. Corley signed a written confession soon afterwards. He finally appeared before a federal magistrate judge to be informed of his rights at 1:30 p.m. – 29 ½ hours after his arrest. The district court judge found that both the oral and written statements were voluntary and denied a motion to suppress the statements. The district court also found that the oral statement was made within six hours of the arrest. On appeal, the majority decision of the Third Circuit did not dispute that both statements were outside the six-hour period and that the district court erred in this regard, but ruled that governing circuit precedent allowed admission of the statements because they were given voluntarily. The Supreme Court reversed and remanded: "The question here is whether Congress intended 18 U.S.C. § 3501 to discard, or merely to narrow, the rule in McNabb v. United States, 318 U.S. 332 (1943), and Mallory v. United States, 354 U.S. 449 (1957), under which an arrested person’s confession is inadmissible if given after an unreasonable delay in bringing him before a judge. We hold that Congress meant to limit, not eliminate, McNabb-Mallory."

Wednesday, April 01, 2009

Harbison v. Bell - Right to Federally-Appointed Clemency Counsel

(1) 18 U.S.C. § 3599 authorizes federally appointed counsel to represent their clients in state clemency proceedings and entitles them to compensation for that representation, and (2) A certificate of appealability pursuant to 28 U.S.C. § 2253(c)(1)(A) is not required to appeal an order denying a request for federally appointed counsel under § 3599 because § 2253(c)(1)(A) governs only final orders that dispose of a habeas corpus proceeding’s merits.

Tuesday, March 31, 2009

Rivera v. Illinois - Improperly Denied Peremptory Challenge Not Structural Error

Provided that all jurors seated in a criminal case are qualified and unbiased, the Due Process Clause does not require automatic reversal of a conviction because of the trial court’s good-faith error in denying the defendant’s peremptory challenge to a juror.

Wednesday, March 25, 2009

Puckett v. United States - Breached Plea Agreement Subject to Harmless Error Review

In exchange for Puckett’s guilty plea, the government agreed to request (1) a three-level acceptance-of-responsibility reduction in his offense level; and (2) a sentence at the low end of the applicable guideline range. The district court accepted the plea, but before Puckett was sentenced he assisted in another crime. As a result, the government opposed any reduction in his offense level, and the judge denied the three-level reduction. On appeal, Puckett raised for the first time the argument that by backing away from its reduction request, the government had broken the plea agreement. The Fifth Circuit found that Puckett had forfeited that claim by failing to raise it below; applied Fed. R. Crim. P. 52(b)’s plain-error standard for unpreserved claims of error; and held that, although the error had occurred and was obvious, Puckett had not satisfied the third prong of plain-error analysis in that he failed to demonstrate that his ultimate sentence was affected, especially since the judge had found that acceptance-of-responsibility reductions for defendants who continued to engage in criminal activity were so rare as "to be unknown." The Supreme Court affirmed, holding that Rule 52(b)’s plain-error test applies to a forfeited claim, like Puckett’s, that the government failed to meet its obligations under a plea agreement.

Monday, March 09, 2009

Vermont v. Brillon: Speedy trial delays caused by PDs are not charged to the State

Absent a systemic breakdown in a state public defender system, delays caused by appointed counsel are not attributed to the state for purposes of Barker v. Wingo, 407 U.S. 514 (1972), speedy trial analysis.

Tuesday, February 24, 2009

United States v. Hayes - Domestic Battery Not an Element Under 922(g)(9)

Following a conditional guilty plea, Hayes was convicted of possession of a firearm after having previously been convicted of a misdemeanor crime of domestic violence, in violation of 18 U.S.C. 922(g)(9) and 924(a)(2). Section 922(g)(9) makes it a crime for any person convicted of a misdemeanor crime of domestic violence" to possess a firearm. He was sentenced to five years of probation, including six months of home detention with electronic monitoring. The court of appeals reversed, holding that the indictment must be dismissed because it failed to allege that Hayes’ state misdemeanor battery conviction was based on an offense that has as an element a domestic relationship between the offender and the victim. The Supreme Court reversed the court of appeals, holding that although domestic relationship is something that the government must prove beyond a reasonable doubt as part of its firearms possession prosecution under §922(g)(9), domestic relationship need not be a defining element of the predicate misdemeanor offense. Mr. Hayes’ predicate conviction was for battery on his common law wife. Although the domestic relationship was present, it was not an element of the battery offense under the applicable state law. The Supreme Court pointed out that the federal law was intended to close a loophole in the original act that allowed convicted domestic abusers to keep firearms since those convictions were typically misdemeanors.

Monday, January 26, 2009

Nelson v. United States: Supreme Court Really Meant it in Kimbrough

The sentencing court clearly applied a presumption of reasonableness to petitioner's Guidelines range, and the circuit court affirmed. The Supreme Court, in a per curiam decision, reversed, re-emphasizing that its cases do not allow a sentencing court (as opposed to an appellate court) to presume that a sentence within the applicable Sentencing Guidelines range is reasonable. "The Guidelines are not only not mandatory on sentencing courts; they are also not to be presumed reasonable. We think it plain from the comments of the sentencing judge that he did apply a presumption of reasonableness to Nelson's Guidelines range. Under our recent precedents, that constitutes error." (Court’s emphasis).

Arizona v. Johnson: Search of Auto Passenger Just Like Terry

In the context of a vehicular stop for a minor traffic infraction, may an officer conduct a pat-down search of a passenger when the officer has an articulable basis to believe the passenger might be armed and presently dangerous, but has no reasonable grounds to believe that the passenger is committing, or has committed, a criminal offense? The Supreme Court held that: (1) the first condition of Terry v. Ohio, i.e. a lawful investigatory stop, is met whenever it is lawful for police to detain an automobile and its occupants pending inquiry into a vehicular violation; (2) police need not have, in addition, cause to believe any occupant of the vehicle is involved in criminal activity; and (3) to justify a pat-down of the driver or a passenger during a traffic stop, however, just as in the case of a pedestrian reasonably suspected of criminal activity, the police must harbor reasonable suspicion that the person subjected to the frisk is armed and dangerous

Wednesday, January 21, 2009

Waddington v. Sarausad: Ambiguous Jury Instruction Not Clearly Established Wrong

Sarausad drove with fellow gang members to a high school, in order to retaliate against a rival gang. With knowledge that his front-seat passenger was armed and going to shoot, Sarausad drove toward a group of students standing outside the school. The passenger opened fire, killing one student and wounding another. A jury convicted Sarausad of second degree murder, second degree attempted murder, and second degree assault based on accomplice liability. The accomplice liability jury instructions mirrored a state statute and had been upheld by Washington state courts. A federal judge granted habeas relief and the Ninth Circuit affirmed, finding the instruction ambiguous under state law, because there is a reasonable probability that a jury would apply the instructions to relieve the prosecution of its obligation to prove all elements of the crime. The Supreme Court reversed, holding, that the state-court decision did not result in an "unreasonable application of ... clearly established Federal law," as is required for relief under sec.2254(d)(1).

Spears v. United States: Kimbrough Means What it Says

Spears was found guilty of conspiracy to distribute at least 50 grams of cocaine base and at least 500 grams of powder cocaine. At sentencing, the district court determined that the drug quantities attributable to Spears yielded an offense level of 38, that his criminal history justified placing him in the Guidelines’ criminal history category IV, and that the resulting advisory Guidelines sentencing range was 324 to 405 months’ imprisonment. The District Court was of the view that the Guidelines’ 100:1 ratio between powder cocaine and crack cocaine quantities yielded an excessive sentence in light of the sentencing factors outlined in 18 U. S. C. §3553(a), so the District Court recalculated Spears’ offense level based on a 20:1 crack-to-powder ratio. That yielded an offense level of 34 and a sentencing range of 210 to 262 months’ imprisonment. The District Court sentenced Spears to 240 months in prison, the statutory mandatory minimum. The sentence was reversed on appeal pre-Kimbrough, then GVR’d by the Supreme Court post-Kimbrough. On remand, the Eighth Circuit again reversed Spears’ sentence and remanded for resentencing. concluding, again, that the district court "may not categorically reject the ratio set forth by the Guidelines,"and replace the 100:1 quantity ratio inherent in the advisory Guidelines range with a 20:1 quantity ratio. The Supreme Court reversed in a per curiam decision "[b]ecause the Eighth Circuit’s decision on remand conflicts with our decision in Kimbrough." The Court "clarif[ied] that district courts are entitled to reject and vary categorically from the crack-cocaine Guidelines based on a policy disagreement with those Guidelines."

Wednesday, January 14, 2009

Oregon v. Ice: Apprendi Does Not Govern Consecutive Sentences

Ice was convicted by a jury of two counts of first-degree burglary and four counts of first-degree sexual abuse. The court sentenced him to a total of 340 months, with three of the sentences running consecutively, based on its finding that the two burglaries of which Ice was convicted constituted "separate incidents," and that Ice’s conduct during the burglaries (which formed the basis for four other convictions) demonstrated a "willingness to commit more than one offense" "caus[ing] or creat[ing] a risk of causing greater or qualitatively different loss, injury or harm to the victim." The Oregon Supreme Court reversed and remanded for resentencing, holding that the sentencing court–by imposing consecutive sentences based on its own findings and not based on jury findings–violated respondent’s rights under the Sixth Amendment, as construed in Apprendi and Blakely. The U.S. Supreme Court reversed, holding the Sixth Amendment’s jury trial right does not prohibit a judge from determining the predicate facts necessary to impose consecutive, rather than concurrent, sentences. Justice Ginsburg, writing for the five-Justice majority, held that "twin considerations–historical practice and respect for state sovereignty–counsel against extending Apprendi’s rule to the imposition of sentences for discrete crimes." Justice Ginsburg found that the decision of whether to impose consecutive or concurrent sentences has historically been the exclusive province of judges, and thus that permitting judges to find the facts necessary to that decision neither encroaches upon the jury’s historical role as fact finder nor threatens its place as a structural protection between the state and the accused. As for state sovereignty, Justice Ginsburg noted that Oregon’s attempt to "rein in the discretion judges possessed at common law to impose consecutive sentences at will" serves the policy interests in proportionality and guarding against disparities in sentence length. She also noted that extending Apprendi to this context would potentially affect judicial fact finding for other purposes (e.g., setting terms of supervised release, community confinement, fines or restitution, or ordering treatment), that it would be difficult for states to administer (i.e., may require bifurcated trials), and that there was no evidence that Oregon’s law reflected a "pernicious manipulation" of Apprendi’s protections. In a forceful dissent, Justice Scalia, joined by Chief Justice Roberts and Justices Souter and Thomas, argued that "Oregon’s sentencing scheme allows judges rather than juries to find the facts necessary to commit defendants to longer prison sentences, and thus directly contradicts what we held eight years ago and have reaffirmed several times since." He accused the majority of setting up a "formalistic distinction" between "facts bearing on the number of years a defendant will serve for one count (subject to the rule of Apprendi) and facts bearing on how many years will be served in total (now not subject to Apprendi)," and correctly noted both that the difference between consecutive and concurrent sentences is often more important to a defendant than a finding of guilt on any single count, and that each of the majority’s arguments had been previously rejected by Apprendi, Blakely, and/or Booker.

Herring v. United States: No Exclusionary Rule for Negligent Police Error

Officers in one jurisdiction checked with employees of a law enforcement agency in another jurisdiction and were told that there is an outstanding warrant for an individual. Acting in good faith on that information the officers arrest the person and find contraband. It turns out the warrant had been recalled. The erroneous information that led to the arrest and search is the result of a good faith mistake by an employee of the agency in the other jurisdiction. The Supreme Court held that the Fourth Amendment does not require suppression of evidence obtained pursuant to a search incident to arrest, despite the fact that the arrest itself violated the Fourth Amendment because it was based on negligent police error.

Tuesday, January 13, 2009

Jimenez v. Quarterman: Out-of-Time Appeal Tolls Habeas Time

Where a state court grants a criminal defendant the right to file an out-of-time direct appeal during state collateral review, but before the defendant has first sought federal habeas relief, his judgment is not "final" for purposes of §2244(d)(1)(A) until the conclusion of the out-of-time direct appeal, or the expiration of the time for seeking certiorari review of that appeal.

Chambers v. United States: Failure to Report to Jail is Not an ACCA Violent Felony

In a 9-0 decision, the Supreme Court held that a failure to report to penal confinement does not qualify as a "violent felony" for purposes of triggering the mandatory 15-year sentence for felons unlawfully in possession of a firearm who have three prior convictions. Citing Begay v. U.S., the Court concluded that failure to report does not "involve conduct that presents a serous potential risk of physical injury to another" and therefore did not meet this part of the "violent felony" definition. The Court noted that the "inaction" involved in "failure to report" distinguished the crime from the "purposeful, violent," and ‘aggressive’ conduct" at issue in violent felonies. Further, the Court cited a recent Sentencing Commission’s Report which contained statistical data that indicated that failure to report does not involve a serious potential risk of physical injury.