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, 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.