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Federal Corner: The State of Borden in the Fifth Circuit

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The state of common Texas offenses almost a year after Borden

Last year, federal criminal defendants won a big victory when the Supreme Court held in Borden v. United States, 141 S.Ct. 1817 (2021), that offenses bearing a mens rea of recklessness lack “the use, attempted use, or threatened use of physical force against the person of another” as an element. The controlling opinion in Borden focuses on the restrictive phrase “against the person of another,” which it holds to imply an “intentional targeting” of the victim, and to exclude accidents. Borden arose in the context  of the Armed Career Criminal Act’s (“ACCA”) definition of “violent felony,” but the language it construed (or very similar language) appears (and is cross‑ referenced) throughout the U.S. Code and Sentencing Guidelines. See 18 U.S.C. 16(a), 18 U.S.C. 924(c) (3)(A), 18 U.S.C. 924(e)(2)(B)(i), 18  U.S.C.  3156(a)(4),  18  U.S.C. 3559(c)(2)(F)(i); USSG 2L1.2, comment. (n. (1)(B))(2015), USSG 4B1.2(a)(1). Most importantly, the language appears in ACCA (which elevates the penalty for firearm possession from a 10‑year maximum to a 15‑year minimum), and in Guideline 4B1.2, which can render the defendant eligible for elevated penalties under the firearm Guideline (USSG 2K2.1) or for the cataclysmic penalties of the career offender Guideline (USSG 4B1.1).

Of course, Borden left circuit courts the task of applying its holding to offenses it did not address. Results in the Fifth Circuit have been mixed, and not everything has been settled. Nonetheless, we do know how some of the most common Texas offenses have fared after Borden. It’s worth remembering that while everything below describes current law, this area of law is notoriously prone to change. Zealous practitioners will no doubt find arguments worth preserving, or that have not yet been addressed, even when the law appears to qualify their clients for an enhanced sentence.

Robbery and Aggravated Robbery

Texas robbery may be committed in either of two basic ways: by causing injury during the course of a theft, or by threatening or placing another in fear during the course of a theft. See Texas Penal Code 29.02(a). Because the Texas offense of robbery‑by‑injury may be committed by the reckless infliction of injury, the Fifth Circuit held in United States v. Ybarra, 2021 WL 3276471 (5th Cir. 2021)(unpublished), that it no longer qualifies as an ACCA “violent felony” under Borden. This is so even if the record establishes that the defendant pleaded guilty to causing such injury intentionally or knowingly. See Ybarra, 2021 WL 3276471, n.1. The three different mental states with which a defendant may commit robbery‑ by‑injury (intent, knowledge and recklessness) in Texas do not define separate offenses, so the crime is not “divisible” for the purposes of criminal history enhancements. See id. (For more on the “divisibility” of prior statutes of conviction for the purpose of criminal history enhancements, see the remarkable case of Mathis v. United States, 136 S.Ct. 2243 (2016), an unsurpassed aid to federal criminal defendants facing recidivism enhancements). The Fifth Circuit has not yet decided whether all forms of aggravated robbery‑by‑injury (e.g. infliction of injury during theft with a deadly weapon, infliction of serious bodily injury during theft, or infliction of injury against a disabled or senior victim during theft) constitute “violent felonies” after Borden. But decisions from the aggravated assault context, see below, strongly suggest that the addition of these aggravating factors will not change the basic analysis.

No such luck for those convicted of robbery‑by‑threat. The Fifth Circuit held in United States v. Garrett, 24 F.4th 485 (5th Cir. 2022), that Texas simple robbery‑by‑ threat qualifies as a “violent felony” under ACCA. This is because Texas robbery‑by‑threat, unlike robbery‑ by‑injury, can only be committed intentionally  or knowingly,  not wrecklessly. And unsurprisingly, the Fifth Circuit held in United States v. Jackson,  F.4th , 2022 WL 951232 (5th Cir. 2022), that aggravated robbery‑by‑threat is likewise a “violent felony” under ACCA. Note, however, that if the government does not produce a record of the defendant’s robbery conviction showing that it stemmed from the statute’s threat prong, ACCA will not apply. See United States v. Balderas, 2022 WL 851768 (5th Cir. 2022)(unpublished).

Borden does not appear to help those subjected to USSG 4B1.2 on the basis of Texas robbery convictions. In contrast to ACCA’s definition of “violent felony,” Guideline 4B1.2’s definition of “crime of violence” specifically enumerates “robbery.” That is, a prior conviction can be a “crime of violence” under USSG 4B1.2 if it either has force as an element, or “is… robbery.”1 And the Fifth Circuit has held that Texas robbery, see United States v. Williams, 2022 WL 71826 (5th Cir. 2022)(unpublished), and aggravated robbery, see United States v. Nava, 2021 WL 5095976 (5th Cir. 2021)(unpublished), are both equivalent to “generic robbery” as the Guideline uses the term. There are good reasons to wonder about this conclusion – Texas, in contrast to most states, does not require that the defendant acquire property as a consequence of his or her act of  violence – but the Fifth Circuit isn’t biting on that distinction yet.

Aggravated Assault

As with the Texas robbery statute, defendants can violate the Texas aggravated assault statute by either inflicting injury or threatening it. See Tex. Penal Code 22.01(a), 22.02(a). The Fifth Circuit found in United States v. Combs, 2022 WL 287556 (5th  Cir. 2021)(unpublished), that aggravated‑ assault‑by‑injury lacks the “use of force against the person of another” as an element and accordingly does not constitute a “violent felony” under ACCA. See also United States v. Gomez-Gomez, 23 F.4th 575 (5th Cir. 2022)(same result under 18 U.S.C. §16(a)). Because the three mental states associated with aggravated‑assault‑by‑injury do not represent distinct offenses, it will not matter if the records of conviction show a conviction for intentional or knowing infliction of injury. See United States v. Lara-Garcia, 2021 WL 5272211 (5th Cir. 2021) (unpublished). The Fifth Circuit has held that aggravated‑assault‑ by‑threat represents a violent felony after Borden, see United States v. Lopez, 2022 WL 576407 (5th Cir. 2022)(unpublished), because it requires intentional or knowing conduct. The Fifth Circuit’s post‑ Borden aggravated assault rulings under ACCA, in other words, track its rulings regarding robbery.

Here too, Borden doesn’t seem to help those subjected to an enhanced Guideline range. Guideline 4B1.2 names “aggravated assault” as a “crime of violence.” USSG 4B1.2(a) (2). And the Fifth Circuit has held that the Texas offense falls within the “generic” definition of “aggravated assault.” See United States v. Guillen-Alvarez, 489 F.3d 197, 200‑201 (5th Cir. 2007). It reaffirmed that conclusion after Borden. See United States v. Blackmon, 844 Fed. Appx. 729 (5th Cir. 2021) (unpublished). But note that there is a long‑standing circuit split as to whether Texas aggravated‑assault‑by‑injury qualifies as “generic aggravated assault,” centering on the significance of its reckless mens rea. See United States v. Barcenas-Yanez, 826 F.3d 752 (4th Cir. 2016). Because the Supreme Court has said that it will usually not take up circuit splits on Guideline questions, see Buford v. United States, 532 U.S. 59 (2001), the issue must likely be resolved by the Sentencing Commission, should it ever again enjoy a quorum.

Family Violence

Texas has two felony assault offenses that require a family or dating relationship between the defendant and the victim. One of these requires a prior conviction for family violence, see Tex. Penal Code 22.01(b)(2)(A); the other requires the defendant to impede the victim’s breath or circulation, see Tex. Penal Code 22.01(b)(2)(A). Both offenses may be committed recklessly, so the Fifth Circuit held in United States v. Greer, 20 F.3d 1071 (5th Cir. 2021), that neither is a “crime of violence” under USSG 4B1.2. This holding should exclude both offenses as “violent felonies” under ACCA as well. Setting aside the timing requirements under USSG 4B1.2, all offenses that meet the definition of “violent felonies” ACCA qualify as “crimes of violence” under USSG 4B1.2.

Assault on a Public Servant

Because the Texas offense of assault on a public servant may be committed recklessly, the Fifth Circuit held that it does not satisfy the definition of a “crime of violence” under USSG 4B1.2. See United States v. Bates, 24 F.4th 1017 (5th Cir. 2022). (Older Fifth Circuit authority found that it is not equivalent to the enumerated offense of “aggravated assault.” See United States v. Fierro-Reyna, 466 F.3d 324 (5th Cir. 2006)). As with family violence, this holding would also appear to preclude its use as a “violent felony” under ACCA.

Murder

The Fifth Circuit ducked a chance to decide whether murder is a “violent felony” after Borden in United States v. Vickers, 2022 WL 780421 (5th Cir. 2022)(unpublished). There is good reason to think it might not be. Texas murder may be committed by causing death through “an act clearly dangerous to human life” in the course of another felony, a standard that sounds a lot like recklessness. See Texas Penal Code 19.02(b)(3). “Murder” is an enumerated offense under USSG 4B1.2, so disqualifying it as a “crime of violence” under that Guideline may pose more of an uphill battle.

Burglary

Borden does not appear to affect Texas burglary offenses under either ACCA or USSG 4B1.2. Under pre‑ Borden precedent, Texas burglary constitutes a “violent felony” under the ACCA, see United States v. Herrold, 941 F.3d 173 (5th Cir. 2019) (en banc), but does not represent a “crime of violence” under USSG 4B1.2, see United States v. Reado, 776 F. App’x 261, 262 (5th Cir. 2019)(unpublished).

Drug Trafficking

Likewise, Borden does not seem to affect Texas drug trafficking offenses. Both delivery and possession with intent to deliver qualify as “serious drug offenses” under ACCA, see United States v. Prentice, 956 F.3d 295 (5th Cir. 2020), but do not represent “controlled substance offenses” under USSG 4B1.2, see United States v. Tanksley, 848 F.3d 347 (5th Cir. 2017). There may be some hope for defendants facing ACCA sentences on the basis of drug conviction. Some other circuits have found that state drug laws criminalize a greater range of substances than federal law, rendering some drug convictions from those states overbroad for the purposes of ACCA. See United States v. Ruth, 966 F.3d 642 (7th Cir. 2020); United States v. Hope, 28 F.4th 487 (4th Cir. 2022).

Shut up and give us the chart, Joel:

ACCA

USSG 4B1.2

Texas Robbery by Injury

No longer qualifies. United States v. Ybarra, 2021 WL 3276471 (5th Cir. 2021)(unpublished)

Qualifies. United States v. Williams, 2022 WL 71826 (5th Cir. 2022)(unpublished).

Texas Aggravated Robbery by Injury

Undecided, but likely does not qualify. See United States v. Ybarra, 2021 WL 3276471 (5th Cir. 2021)(unpublished) and United States v. Gomez-Gomez, 23 F.4th 575 (5th Cir. 2022).

United States v. Nava, 2021 WL 5095976 (5th Cir. 2021)(unpublished).

Texas Robbery and Aggravated Robbery by Threat

Qualifies. United States v. Garrett, 24 F.4th 485 (5th Cir. 2022); United States v. Jackson,  F.4th , 2022 WL 951232 (5th Cir. 2022).

Qualifies. United States v. Williams, 2022 WL 71826 (5th Cir. 2022)(unpublished); United States v. Nava, 2021 WL 5095976 (5th Cir. 2021)(unpublished).

Texas Aggravated Assault by Injury

No longer qualifies. United States v. Combs, 2022 WL 287556 (5th Cir. 2021)(unpublished); United States v. Gomez-Gomez, 23 F.4th 575 (5th Cir. 2022).

Qualifies. United States v. Blackmon, 844 Fed. Appx. 729 (5th Cir. 2021)(unpublished).

Texas Aggravated Assault by Threat

Qualifies. United States v. Lopez, 2022 WL 576407 (5th Cir. 2022)(unpublished).

Qualifies. United States v. Blackmon, 844 Fed. Appx. 729 (5th Cir. 2021)(unpublished).

Texas Felony Family Violence by Recidivism or Impeding Breath or Circulation

Undecided, but implicitly disqualified by United States v. Greer, 20 F.3d 1071 (5th Cir. 2021).

No longer qualifies. United States v. Greer, 20 F.3d 1071 (5th Cir. 2021).

Texas Murder

Uncertain.

Uncertain.

Texas Assault on a Public Servant

Undecided, but implicitly disqualified by United States v. Bates, 24 F.4th 1017 (5th Cir. 2022).

No longer qualifies. United States v. Bates, 24 F.4th 1017 (5th Cir. 2022).

Texas Burglary

Qualifies. United States v. Herrold, 941 F.3d 173 (5th Cir. 2019)(en banc).

Still doesn’t qualify. United States v. Reado, 776 F. App’x 261, 262 (5th Cir. 2019)(unpublished).

Texas Delivery of a Controlled Substance and Possession with Intent to Deliver

Qualifies. United States v. Prentice, 956 F.3d 295 (5th Cir. 2020).

Still doesn’t qualify. United States v. Tanksley, 848 F.3d 347 (5th Cir. 2017); United States v. Hinkle, 832 F.3d 569 (5th Cir. 2016).

Federal Corner: No Federal Habeas Relief Despite Sleeping Lawyer

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The Sixth Amendment right to counsel

“In all criminal prosecutions, the accused shall enjoy the right to . . . have the Assistance of Counsel for his defense.” U.S. Const. amend. VI.

“An accused’s right to be represented by counsel is a fundamental component of our criminal justice system.” United States v. Cronic, 466 U.S. 648, 653 (1984). “[T]he right to the effective assistance of counsel is recognized not for its own sake, but because of the effect it has on the ability of the accused to receive a fair trial.” Id. at 658. The Sixth Amendment requires that the accused have “counsel acting in the role of an advocate.” Id. at 656 (internal quotation omitted).

“The right to counsel exists, and is needed, in order to protect the fundamental right to a fair trial . . . That a person who happens to be a lawyer is present at trial alongside the accused, however, is not enough to satisfy the constitutional command. The Sixth Amendment recognizes the right to the assistance of counsel because it envisions counsel’s playing a role that is critical to the ability of the adversarial system to produce just results.” Strickland v. Washington, 466 U.S. 668, 685 (1985).

In McFarland v. Lumpkin, 26 F.4th 314 (5th Cir. 2022), the Court of Appeals for the Fifth Circuit held that the district court did not err when it found that 28 U.S.C. § 2254(d) precluded federal habeas merits review of petitioner’s claims that his Sixth Amendment right to counsel was violated when trial counsel was asleep and unprepared during his capital murder trial.

Facts underpinning Cronic and Strickland claims of violation of Sixth Amendment right to counsel

Mr. McFarland was convicted as an accomplice to capital murder and sentenced to death by a Texas trial court. According to the Fifth Circuit’s recitation of the facts, “[d]uring trial, the judge confronted a problem. Mr. McFarland’s retained counsel [] was sleeping through significant portions of the trial and otherwise presented as unprepared.”1 Indeed, in his briefing to the Fifth Circuit, Mr. McFarland explained that retained counsel was so obviously unprepared to try a capital case that the trial court appointed second chair counsel (without Mr. McFarland’s consent).2

The trial court, however,  instructed second chair counsel not to make any decisions in the case without the approval of first chair counsel and applicant, and that [first chair counsel] was to remain the “lead lawyer” and  “in charge” (Fifth Circuit opinion). In addition, the McFarland opinion noted it was unknown if the Trial Court actually informed Mr. McFarland expressly about its concern over his lawyer’s preparation and competence. In his briefing, Mr. McFarland further describes how, once trial began, first chair counsel then slept through significant portions of the trial.

Even after second chair counsel was appointed, neither attorney “ever interviewed the State’s key witnesses, the other alleged accomplice [] or [the State’s other key witness].” Defendant’s mitigation presentation in the punishment of the death penalty case totaled 15 minutes.

State habeas proceedings

In state post-conviction proceedings, Mr. McFarland alleged, amongst other issues, he was actually or constructively denied counsel and deprived of the effective assistance of counsel at trial  in violation of the Sixth Amendment under Strickland and Cronic. The Texas Court of Criminal Appeals denied relief as to all claims, finding that the presence of second chair counsel was sufficient to cure any denial of the right to counsel under Cronic and that trial counsel did develop a strategy sufficient to constitute effective representation under Strickland.3

Federal habeas proceedings in the district court

In federal habeas proceedings, Mr. McFarland re-urged his claims that he was constructively denied counsel and was denied effective assistance of counsel in violation of the Sixth Amendment, in reliance on Cronic and Strickland. Because both claims were adjudicated on the merits by the CCA, merits review by the federal court was prohibited pursuant to 28 U.S.C. § 2254(d), unless the State court’s adjudication “resulted in a decision contrary to, or involved an unreasonable application” of Supreme Court case law or “resulted in a decision that was based on an unreasonable determination of the facts” in light of the state court record.

The district court found that, whether as to Mr. McFarland’s Cronic or Strickland claims, the CCA’s adjudication on the merits neither amounted to an unreasonable application of Cronic and Strickland nor an unreasonable determination of the facts.4 The Federal District Court also found the CCA’s determination that the presence of second chair counsel was sufficient to cure any denial of the right to counsel did not constitute an unreasonable application of Chronic.  The Federal District Court also held the CCA’s finding that trial counsel had  a “trial strategy” did not constitute an unreasonable application of the Strickland test.5

Arguments on appeal to the Fifth Circuit Court of Appeals

Mr. McFarland applied for and was granted a Certificate of Appealability on, amongst other issues, whether the Federal District Court legally erred in determining that the 28 U.S.C. § 2254(d) re-litigation bar precluded merits review of his Cronic and Strickland claims6. As to his Cronic claim, Mr. McFarland argued the Court had failed to engage with his argument that prejudice should not have been presumed based on the circumstances requiring appointment of a second chair alone.7

In support of his circumstances argument, Mr. McFarland pointed to the facts that first chair counsel, as described by the Fifth Circuit, was unprepared and sleeping through significant portions of the trial. The second chair counsel was prohibited by the trial court from taking any actions not approved by first chair counsel and Mr. McFarland who was likely unaware of his own lawyer’s incompetence.8 Mr. McFarland argued the totality of these circumstances rendered any effective representation by second chair counsel impossible, and that he was thus constructively denied counsel under Cronic.9 Indeed, two State court judges had dissented from the majority and would have granted Cronic relief.10

Mr. McFarland also argued that the district court legally erred when it determined that the State court’s adjudication of his Strickland claim did not constitute an unreasonable application of the Supreme Court’s case law. Mr. McFarland urged that the CCA’s finding trial counsel had a strategy was unsupported by the record. Amongst other facts, Mr. McFarland pointed to the fact the record established that first and second chair counsel had very little contact prior to trial and could therefore never have discussed any strategy. Mr. McFarland further argued that the district court should have focused its analysis on whether, applying Strickland, it was reasonable to not investigate the State’s case on guilt as opposed to focusing its inquiry on what other actions trial counsel did undertake.

Mr. McFarland argued that the Fifth Circuit should instead find that the State court’s adjudication constituted an unreasonable application of Cronic and Strickland such that the 28 U.S.C. § 2254(d) relitigation bar was met, thus permitting federal habeas merits review and relief.

No error in the Fifth Circuit

The Fifth Circuit summarily rejected Mr. McFarland’s claim under Cronic: “We are aware of no case where a sleeping co-counsel alone triggers Cronic’s presumption of prejudice.”11 The Fifth Circuit concluded that, based on the absence of such a Supreme Court case, the State’s court’s adjudication that the presence of second chair counsel was sufficient to cure any Sixth Amendment violation did not rise to an unreasonable application of Cronic.12 The Fifth Circuit, however, failed to engage with Mr. McFarland’s circumstances argument, despite clear language from the Supreme Court in Cronic itself in support of such an argument: “Circumstances . . . may be present on some occasions when although counsel is available to assist the accused during trial, the likelihood that any lawyer, even a fully competent one, could provide effective assistance of counsel is so small that a presumption of prejudice is appropriate without inquiry unto the actual conduct of the trial.”13

The Fifth Circuit found Mr. McFarland’s arguments under Strickland failed to survive the court’s “doubly deferential” standard under 28 U.S.C. § 2254(d) and Strickland. As to each of Mr. McFarland’s allegations of deficient performance, the Fifth Circuit found that he could not show that the State court’s determination that the Strickland test was not met was unreasonable.14 For example, the Fifth Circuit found that it was reasonable for the State courts to find that trial counsel’s failure to thoroughly cross-examine the State’s key witnesses (including the State’s sole eyewitness whose description of the perpetrator shifted over time) did not fall below prevailing professional norms because cross-examination is inherently risky and trial counsel did cross those witnesses but on different issues.15

Conclusion

This case is significant because it illustrates how, even in circumstances as egregious as a sleeping lawyer in a capital murder trial, 28 U.S.C. § 2254(d) precludes merits review (let alone relief) in federal habeas. Mr. McFarland’s argument that the circumstances at trial amounted to a constructive denial of the right to counsel finds clear support in the Supreme Court’s language in Cronic. Likewise, the incomplete cross-examination of the State’s key witnesses and truncated mitigation presentation support a Strickland claim. Even where the Sixth Amendment right to counsel is at stake, however, the Fifth Circuit will not disturb a state court’s adjudication of a state turned federal habeas petitioner’s claims.

Federal Corner: Plea agreement or not – You can’t punish me for liking the Yankees and not Red Sox!

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United States v. Leroya Cozad, 2022 WL 16492 (10th Cir. Filed January 3, 2022)

The Court in this opinion summarizes a concern defense attorneys have- use a plea agreement or plea to the indictment? This is a very different calculus in Federal Court where the judge does most of the “sentencing” as compared to state court where the prosecutors provide the agreed sentence.

In Cozad, the Court looked at “whether under 18 U.S.C. § 3553(a) it is unreasonable for a district court to impose a harsher sentence based on a defendant’s decision to plead guilty without a plea agreement.” The 10th U.S. Court of Appeals tells us it is unreasonable.

Facts of the Case

Ms. Leroya Cozad was indicted on a single charge of aiding and abetting the making of counterfeit currency. In negotiations with the Government, she offered to enter a guilty plea to four (4) years-probation. The government countered with a “low end” guidelines sentence. She chose to enter a guilty plea to the indictment, without a plea agreement. The probation officer determined that guideline range was 24 to 30 months. Subsequently and prior to sentencing, both parties submitted sentencing memorandums. Ms. Cozad sought probation and the government sought the low end of 24 months, which is what it had sought during plea negotiations.

The District Court rejected those requests and sentenced Ms. Cozad to 27 months, the midpoint of the guidelines. In explaining that decision the district court stated:

I think sometimes there’s sort of an implicit assumption that an individual is entitled to a sentence at the low end of the guideline range, but there is, of course, no such right. And, in practice, one of the factors I’ve used to lean against a low-end guideline range are defendants who submit a plea without a plea agreement, without the agreements that typically happen in a plea agreement.

That’s certainly their right to plead without a plea agreement, but they do not have a right to a low-end guideline range sentence, and so it’s always been my — again this isn’t a hard-and-fast rule by any means that I apply, but it’s always been my practice to say if someone agrees to a plea agreement, the additional conditions that are obtained in that, they’re entitled to additional consideration, which is where I start at a low-end guideline range.

But in my calculation, without a plea agreement, I have always started with looking more at the mid-tier of the guideline range, which is where I think the guidelines initially envisioned that courts would operate, and not giving them the additional credit for actually entering into a plea agreement to do that.

In this case, having thought about it obviously since our hearing last week, having looked through the briefs that have been filed in this case since that time, as well as additional information I’ve received from the probation office and going back through the report as well, it’s my conclusion that, first of all, Ms. Cozad has not shown demonstration that entitles her to a variance from the guideline recommendation of a custodial sentence, and I cannot find that that variance has been earned; and secondly, in light of the matters that I’ve just discussed overall, that a low-end guideline range sentence is not appropriate. [Emphasis in Opinion) Record cite at *2 Rec., vol. III at 42–44 (emphasis added).

Appeal

The Court began its analysis with discussing that a defendant’s sentence was reviewed for either procedural or substantive reasonableness. The Court focused on the fact that that the district court “described its customary practice of distinguishing defendant’s based on the nature of their plea.” And also that while the “district court made a passing reference to ‘the agreements that typically happen in a plea agreement,’ the court did not specify what those agreements are.”

As we know, and the Court of Appeals discussed, those agreements can be appeal waivers and, fast track type agreements. The Court began by analyzing, the district court’s decision under 18 U.S.C. § 3553(a) stating that there were only four permissible factors that could be considered by statute. And while a court under 18 U.S.C. § 3661 is told that “no limitation shall be placed on the information concerning the background, character and conduct of a person…” That does not mean that all information is relevant to a defendant’s character.

The Court analyzed that the defendant’s need for rehabilitation was impermissible a factor under 18 U.S.C. § 3582(c) See United States v. Story, F.3d 1241, 1247-48 (10th Cir. 2011) or even worse, refusing to testify, in United States v. Cabrera, 811 F.3d 801, 808-09 (6th Cir. 2016) that Court held that a within-guidelines sentence was procedurally unreasonable because it was based on the defendant’s refusal to testify. The Court pointed to several other illegal considerations, such as prison sentences for inability to pay restitution and as Justice Stevens summarized in Rita v. United States, 551 U.S. 338, 365 (2007) for non-relevant factors, when he noted that it would be “unreasonable for a district court to give “harsh sentences to Yankees fans and lenient sentences to Red Sox fans.”

The Court then turned to Ms. Cozad’s sentence and stated that it did not see how the “fact of a defendant’s open plea, standing alone, bears any meaningful relationship to the § 3553(a) factors.” This was because a plea agreement is a contract and either party may reject the other party’s offer or refuse to negotiate entirely. It continued stating that the fact that the parties failed to mutually agree, as here where Ms. Cozad requested probation and the government requested the low end (of the properly calculated guidelines); that failed contractual negotiation and agreement is not something that provides “insight into the defendant’s character.” It also does not constitute one of the proper reasons under the statute to aid a district court in determining a sentence to comply with §3553(a)- a sentence that is sufficient, but not greater than necessary. The court stated that penalizing a defendant on the “absence of a plea agreement alone is arbitrary.”

The government tried to go back to the district courts use of the “other agreements” that a plea agreement may contain. The 10th Cir. has held that a district court could consider a negotiated appellate waiver because it could show acceptance of responsibility beyond the mere guilty plea. Think of a defendant who failed a urinalysis or violated some other item and is in need of demonstrating to a court that he wants to be committed to acceptance of responsibility.

The Court continued though and discussed that the cases that discussed the appellate waiver in a plea agreement as consideration, were, “fundamentally different than the absence of an appeal waiver in an agreement that never happened and whose terms remain purely hypothetical.”

The government’s next reason was that without providing a benefit for “uniformity purposes” and “additional leniency” to individuals who use a plea agreement, defendant’s would not have a “compelling” reason to use a plea agreement.. The Court explained that the Government’s theory was based on a false premise. Because a prosecutor could always file additional charges or seek aggressive interpretation of the guidelines to provide a “compelling reason”. See Fed. R. Crim. P. 11(c)(1)(B),(C). Therefore, with the government’s recommendation, a defendant who refuses to a plea bargain would still risk receiving a higher sentence in many cases. Thus providing a “compelling” reason to accept a plea agreement in some cases.

Lastly, the Court looked at fast track plea agreements. These are plea agreements where the government has provided an agreement with a specific departure under §5K3.1 of the United States Sentencing Guidelines. The Sentencing Commission adopted § 5K3.1 at the direction of Congress, which sought to incentivize early plea deals by accommodating fast track programs within the guidelines. In the author’s experience these usually provide anywhere for 1 to 2 points for offenses like alien smuggling or illegal re-entry. Fast Track Plea Agreements reward defendants with the set reduction by entering a plea usually prior to the indictment and for waiving any pre-trial motion practice. The Court recognized that these programs do not fit into the § 3553(a) factors, but do reflect Congress’ intent. In Cozad, the district court placed its own expression of this intent, where Congress had not spoken.

Conclusion

Ultimately this does not mean that a defendant cannot receive a harsher sentence if she enters a guilty plea without a plea agreement; rather a defendant cannot receive a harsher sentence simply because she did not have a plea agreement. Rule 11(c) prevents a judge from entering into the negotiations of a plea agreement.  See United States v. Carver, 160 F.3d 1266, 1269 (10th Cir. 1998). This does not mean that the government cannot provide the “compelling reasons” for a defendant to choose a plea agreement, only that the court cannot do so. Reflecting on plea decisions in federal court, this happens many times- role agreements, acceptance recommendations-where it may be at risk, and the hardest to obtain, charge bargaining where a charge is offered that does not contain a mandatory minimum. These are some quick examples of “compelling” reasons that can be negotiated in a beneficial plea agreement. However simply entering into a plea agreement in a single count fraud indictment may not provide any incentive or “compelling reason” where the government is recommending the low end of a properly calculated guideline. Here Cozad explains that you should not be punished for solely that act of acceptance and not taking a benefit-less agreement.

Federal Corner: Saving the Confrontation Clause

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The Confrontation Clause

One of the greatest trial rights and protections owned by a criminal defendant is the Sixth Amendment right to confront and cross-examine witnesses at trial. The Sixth Amendment of the United States Constitution states that: “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him;”

 – U.S. Const. amend. VI.

The Confrontation Clause and the rule against hearsay found in the rules of evidence protect similar interests.  However, in California v. Green, 339 U.S. 149 (1970), the United States Supreme Court held that the 6th Amendment’s right to confrontation and the hearsay rule in the rules of evidence are not the same.  In doing so, the Court stated the following: “While it may readily be conceded that hearsay rules and the Confrontation Clause are generally designed to protect similar values, it is quite a different thing to suggest that the overlap is complete and that the Confrontation Clause is nothing more or less than a codification of the rules of hearsay and their exceptions as they existed historically at common law.”

The distinction of the confrontation right and the hearsay rule is significant.  Constitutional protections carry more weight than evidentiary rules in trial courts and on appeal. Further, the hearsay rule’s many exceptions do not apply to the confrontation clause.  California v. Green, 339 U.S. 149 (1970); See Barber v. Page, 390 U.S. 719 (1968); Pointer v. Texas, 380 U.S. 400 (1965).  

Crawford v. Washington

In 2004, the United States Supreme Court issued an important opinion in confrontation litigation, Crawford v. Washington, 541 U.S. 36 (2004).  In Crawford, husband, Michael Crawford, and wife, Sylvia Crawford, were charged related to the stabbing of a man. Both Michael and Sylvia gave recorded statements to the police at the police station regarding the incident. Michael admitted to stabbing the man in self-defense, but Sylvia’s statement to the police was inconsistent with Michael’s defense. At Michael’s trial, the State could not compel Sylvia to testify against Michael due to the spousal privilege rule in Washington. Therefore, the State introduced Sylvia’s prior recorded statement under the “statement against interest” exception to the hearsay rule over the Defense’s objection that the recording violated the Confrontation Clause. The Supreme Court in Crawford held that the introduction of Sylvia’s statement at trial without Sylvia appearing to testify in court violated the Confrontation Clause and was inadmissible. The Court held “that any out of court declaration that is testimonial in nature, is inadmissible if the declarant does not testify at trial and the Defendant has not had a prior opportunity to cross examine the witness.” 

Opening the Door Exception to Confrontation

In Hemphill v. New York, 2022 WL 174223 (2022), the Supreme Court had to decide whether the statutory exception to the Confrontation Clause violated the Sixth Amendment. The Confrontation Clause was under attack by New York, which had created an exception to the confrontation clause: “Opening the Door.”

Facts of the Case

A two-year old boy traveling in vehicle was killed by a stray 9-millimeter bullet shot by a person involved in a street fight. Police suspected that either Nicholas Morris or Darrel Hemphill was the shooter. A search of Morris’ apartment yielded 9-millimeter ammunition only and a .357-magnum handgun. Morris was initially charged with the murder of the child, but later was offered and agreed to plea to a charge related to possession of the .357-magnum handgun and dismissal of the murder charge.

Hemphill was then charged with the murder of the child. During Hemphill’s trial, Hemphill used a third-party culpability defense, blaming Morris for the murder.  During opening statement, Hemphill’s counsel told the jury that a search was conducted of Morris’s apartment hours after the shooting, and the police had recovered 9-millimeter ammunition, he ame aliber ammunition that had been used to shoot the boy. 

To controvert the Defense’s opening statement, the prosecution sought to introduce the plea colloquy transcript from Morris’ plea hearing in which Morris had pleaded guilty to possession of the .357-magnum handgun.  The State cited to the Reid Rule, as a judicially and legislatively created exception to the Confrontation Clause in New York that allowed the trial court to admit evidence at trial for the prosecution that would be otherwise inadmissible if the court determines that the defense has “opened the door” to the evidence by creating a misleading impression with the jury.  The Defense objected that the testimony sought by the prosecution (the plea transcript) violated the Confrontation Clause and Crawford v. Washington, because Morris was unavailable to testify and the defense had not had a previous opportunity to cross-examine him.

The trial court found that Hemphill’s attorney “opened the door” during opening statements by telling the jury about the 9-millimeter ammunition that was found in Morris’ apartment on the night of the murder. Therefore, the trial court allowed Morris’ plea colloquy transcript from the possession of the .357-magnum handgun charge into evidence to correct a “false impression” created by the defense.

Question Presented

Whether New York’s “opening the door” rule to the Confrontation Clause is a violation of the Confrontation Clause.   The rule allows the trial court to admit evidence for the prosecution at trial that would be otherwise inadmissible if the court determines that the defense has “opened the door” to the evidence by creating a misleading impression with the jury.

Background

The Court first analyzed some of the history of Confrontation Clause Jurisprudence. In 1980, the Supreme Court held in Ohio v. Roberts, 448 U.S. 56 (1980) that the Confrontation Clause did not bar the admission of statements of an unavailable witness, so long as the statements bear an “adequate ‘indicia of reliability,’” meaning that they fell “with a firmly rooted hearsay exception” or other “particularized guarantees of trustworthiness.”

However, in Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court abrogated Ohio v. Roberts.  The Court held “that any out of court declaration that is testimonial in nature, is inadmissible if the declarant does not testify at trial and the Defendant has not had a prior opportunity to cross examine the witness.”  

State’s Arguments on Appeal

In its arguments to the Court, the State conceded that Morris’ plea colloquy was testimonial, meaning the Confrontation Clause was implicated.  However, the State argued that New York’s “opening the door” rule was not an exception to the Confrontation Clause.  Instead, the State argued that the “opening the door” rule was a procedural rule, like failing to object to the confrontation clause violation, and thus there was no violation. 

The Court has approved procedural rules and allows the States and the Government to adopt procedural rules related to objections to testimonial evidence.  For example, in Melendez-Dias v. Massachusetts, 557 U.S. 305 (2009), the Court approved “notice and demand” statutes.  These statutes require the State to give notice that it plans on introducing testimonial evidence (such as a lab report) without a sponsoring witness and the defense is given a deadline by which to object to the introduction of the evidence.  Failure to object is considered a waiver of the right to confront the witness. 

The Court’s Analysis – Procedural Rules

First, the Court emphasized that it approves of procedural rules that allow for admission of testimonial evidence.  The Court reiterated its approval of the “notice and demand” statutes discussed in Melendez-Dias.  The Court also approved the rule stated in Illinois v. Allen, 397 U.S. 337 (1970), which allows for removal of a criminal defendant from his trial when despite repeated warnings, he has become so disorderly, disruptive, and disrespectful in court that his trial cannot be cannot be carried on with him in the courtroom. 

The Court’s Analysis – Substantive Rules

However, the Court held that New York’s “opening the door” rule was not a procedural rule, but instead it was substantive.  In other words, the “opening the door” rule was a substantive rule like the one in Ohio v. Roberts, 448 U.S. 56 (1980) that allowed the testimonial statements of an unavailable witness, so long as the statements bear an “adequate ‘indicia of reliability,’” meaning that they fell “with a firmly rooted hearsay exception” or other “particularized guarantees of trustworthiness.”  However, Ohio v. Roberts was rejected in Crawford v. Washington, 541 U.S. 36 (2004).  In rejecting Ohio v. Roberts, Crawford stands for the principal that judges are barred “from substituting their own determinations of reliability for the method the Constitution guarantees.”  In other words, a judge should not substitute her wisdom about reliability for the reliability of cross-examination.

Similarly, the Court held that New York’s “opening the door” rule was substantive, requiring the trial court to weigh evidence. “It was not for the judge to determine whether Hemphill’s theory that Morris was the shooter was unreliable, incredible, or otherwise misleading in light of the State’s proffered, unconfronted plea evidence. Nor, under the Clause, was it the judge’s role to decide that this evidence was reasonably necessary to correct that misleading impression.  Such inquiries are antithetical to the Confrontation Clause.”

The Holding

Because New York’s “opening the door” rule was substantive, requiring the trial court to weigh evidence, the rule violated the Confrontation Clause.  Judges are not allowed to weigh the reliability, credibility, or misleading nature of testimony as a substitute for cross-examination. 

The Authors’ Thoughts

  • The Court properly distinguished between procedural and substantive rules.  Procedural rules like Texas’ Article 38.41 (Certificate of Analysis) which allows the State to give notice that it intends to introduce a laboratory report without a sponsoring witness, are approved because the defense has an opportunity to object to the evidence.  However, rules like New York’s “opening the door” rule rely on judge’s weighing the credibility, reliability, or weight of evidence are substantive in nature, and thus violate the principles set out in Crawford
  • This case is a significant opinion because the Court did not take a step back from Crawford. This is and 8-1 opinion.  Crawford is still the rule of law and confrontation continues to be one of the most important and protected trial rights for a defendant.

Federal Corner: Fifth Circuit Provides a Tool to Contest Firearm Enhancements

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Experienced federal practitioners are conditioned to wince upon the mention of a gun in proximity to a drug deal or even just near a stash of drugs intended for sale. Those combinations can produce a two-level enhancement under USSG §2D1.1(b)(1), the drug Guideline, for possession of a firearm in connection with a drug offense; a four-level enhancement under USSG §2K2.1(b)(6), the firearm Guideline for use of a firearm in connection with another felony; a cross reference from the firearm Guideline to the drug Guideline under USSG §2K2.1(c)(1); or, worse, a 5-year mandatory minimum under 18 U.S.C. §924(c). Sometimes, it’s tempting not to fight the Guideline enhancements,1 even when the evidence seems to show nothing more than the mere presence of guns and drugs. The courts have hammered into us that firearms are “tools of the trade”2 when it comes to drug dealing, and the Application Notes to both USSG §2D1.1(b)(1)3 and USSG §2K2.1(b)(6)4 rather strongly encourage their application when guns and drugs are together. But, a recent Fifth Circuit opinion reminds us not to concede the issue too readily.

In United States v. Sincleair, __ F.4th __, No. 20-10495, 2021 WL 5001783 (5th Cir. Oct. 28, 2021), a drug defendant suffered arrest at the home of a downstream customer, that is, a man who bought drugs from the defendant’s own buyer. In fact, these two customers of the defendant were transacting two ounces of methamphetamine when police arrived. The police also found a gun in close proximity to all concerned. Although police ultimately found that the gun was registered to one of the customers (the resident), the district court nonetheless imposed a two-level enhancement for possessing a firearm in connection with the drug offense.

A divided panel of the Fifth Circuit vacated the sentence and remanded. The panel majority did not think the district court was sufficiently clear about the reason for the adjustment. That is, the district court did not clearly say whether the defendant had personally possessed the firearm, or whether, instead, he was vicariously responsible for another’s possession through principles of relevant conduct. The panel said:

It is not clear whether the district court determined that Sincleair personally possessed the firearm or that one of Sincleair’s “unindicted co-conspirators” possessed it during the commission of an offense. The PSR addendum presents both of these options as possibilities, and the district court did not explain which form of possession it attributed to Sincleair. In such a situation, our circuit precedent supports vacating the sentence and remand for the district court to make the appropriate findings.

Id. at *3. Sincleair thus confirms Fifth Circuit precedent. See United States v. Zapata-Lara, 615 F.3d 388 (5th Cir. 2010) (requiring district courts to make explicit findings in support of their Guideline calculations, including those underlying the gun enhancement to USSG §2D1.1).

Perhaps more significantly, the panel found insufficient evidence to support either a theory of personal possession or of vicarious sentencing liability through relevant conduct. It said:

Moreover, there is not enough in the record to support the firearm enhancement based on Sincleair’s personal possession of the firearm because the PSR did not include sufficient facts establishing a temporal and spatial relationship between the gun, the drug trafficking activity, and Sincleair. The Government (and the probation officer) did not provide any evidence establishing that Sincleair owned the weapon, brought the weapon with him to [downstream buyer]’s house, or had any other connection to it. Neither the PSR nor any other evidence supports a finding of temporal proximity between Sincleair’s drug trafficking activity and the weapon found in [downstream buyer]’s house. The only relevant facts in the PSR are that Sincleair was [direct customer]’s source for methamphetamine, and Sincleair and [direct customer] and their girlfriends were present at [downstream buyer]’s home for a social gathering around the time that [direct customer] sold an ounce of methamphetamine to [downstream buyer]. Thus, the only drug transaction that is documented in the PSR occurred in [downstream buyer]’s home between [direct customer] and [downstream buyer]. Even if it may be inferred that Sincleair sold the methamphetamine to [direct customer], there is no evidence of any temporal proximity between Sincleair’s sale and the presence of the weapon; there is no evidence that the sale occurred on the same day, same week, or even same month as [direct customer]’s sale to [downstream buyer]. There is also no evidence that Sincleair promoted or assisted in the sale in any way. The temporal connection between the firearm and any drug trafficking by Sincleair was thus tenuous at best.

Sincleair, __ F.4th at *4.

Though the opinion doesn’t say as much explicitly, it does seem to bolster a defendant’s argument against personal possession of a firearm – notwithstanding its proximity to both the defendant and the drugs – whether it might just as plausibly have been possessed by another person. It also supplies a good argument against the application of the gun enhancement based on possession by co-defendants. Specifically, it seems to hold that a co-defendant’s possession of a gun in connection with drugs will not justify the adjustment unless the defendant is involved in the particular transaction where the gun is present. Remarkably, this may be so even if he or she previously delivered the very quantity at issue.

Federal Corner: When Does “No” Mean No?

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On August 10, 2021, a panel of the United States Court of Appeals for the Fifth Circuit held that a defendant who a jury determined did not know the quantity of drugs involved in a conspiracy could be found guilty of the conspiracy, but could not be sentenced for the quantity of drugs involved in the conspiracy. United States v. Aguirre-Rivera, 8 F.4th 405 (5th Cir., 2021). The case distinguishes between jury questions related to the primary offense versus those relating to punishment.

Background of the Case

Baltazar Aguirre-Rivera was charged with one count of conspiracy to possess with intent to distribute at least one kilogram of heroin in violation of 21 U.S.C. §§841(a)(1), (b)(1)(A)(I), and 846. At the end of Aguirre-Rivera’s trial, the district Court instructed the jury that it could find Aguirre-Rivera guilty only if the government had proven beyond a reasonable doubt: (1) “that two or more persons directly, or indirectly, reached an agreement to possess heroin with intent to distribute the same”; (2) “that the Defendant knew of the unlawful purpose of the agreement”; (3) “that the Defendant joined in the agreement willfully, and that is with the intent to further its unlawful purpose”; (4) “that the overall scope of the conspiracy involved at least one kilogram or more of a mixture or substance containing a detectable amount of heroin”; and(5) “that the Defendant knew, or reasonably should have known, that the scope of the conspiracy involved at least one kilogram or more of a mixture or substance containing a detectable amount of heroin.” See id. at 408.

Jury Questions and Answers

The district court provided the jury with a verdict form containing three questions. The first question asked for a general verdict of “Guilty” or “Not Guilty.” The jury answered this question “Guilty.” The second question asked, “Do you find beyond a reasonable doubt that the overall scope of the conspiracy involved at least one kilogram or more of a mixture or substance containing a detectable amount of heroin?” The jury responded “Yes” to this query. The final question asked, “Do you find beyond a reasonable doubt that the defendant knew or reasonably should have known that the scope of the conspiracy involved at least one kilogram or more of a mixture or substance containing a detectable amount of heroin?” The jury answered, “No.” See id.

Is there a Problem here?

The jury’s answer to the third question seems to fly in the face of the Court’s instructions. The jury found the defendant guilty in spite of the fact that they did not find that the government proved beyond a reasonable doubt that the Defendant knew or should have known the scope of the conspiracy; this was one of the questions the Court instructed the jury must be answered affirmatively in support of a “Guilty” verdict. Based on this discrepancy, Aguirre-Rivera moved for judgment of acquittal on the basis that the jury’s answer to the second special interrogatory contradicted, and therefore undermined, its general verdict of guilty. See id.

“No” Does Not Mean No

Despite the Court’s instructions, the judge did not issue a judgment of acquittal. The district court denied Aguirre-Rivera’s motion because, although the jury’s answer to the second special interrogatory “undermine[d] the fifth element of the jury charge, [it did] not negate an essential element of the jury’s finding of guilt.” See id.

The 5th Circuit addresses the First Issue

Aguirre-Rivera first challenged the district court’s denial of his motion for judgment of acquittal. He contended that the jury’s answer to the second special interrogatory, which found that he neither knew nor should have known that the conspiracy involved one kilogram or more of heroin, directly contradicted the fifth element of the jury charge. According to him, this contradiction undermined one of the elements that was necessary to support his conviction under the statute; and therefore it also undermined the guilty verdict altogether. See id. at 409

The Standard of Review

The panel for the Fifth Circuit started by stating “We review the denial of a motion for judgment of acquittal de novo. United States v. Buluc, 930 f.3d 383, 387 (5th Cir.), cert. denied, 140 S.Ct. 544(2019). ‘Courts consistently vacate convictions when the answers to special interrogatories undermine a finding of guilt the jury made on the general questions.’ United States v. Gonzales, 841 F.3d. 339, 348 (5th Cir. 2016)). If the jury’s answer to the second special interrogatory did undermine an essential element of the charged offense, then the district court should have granted Aguirre-Rivera’s motion for the judgment of acquittal. See id. Our task, then, is to determine whether the jury’s answer to the special interrogatory undermined an essential element of Aguirre-Rivera’s conviction.” See Aguirre-Rivera 8 F.4th at 409.

Element versus Enhancement

The opinion then lays out the elements of the offense charged. “The essential elements of a drug conspiracy are (1) an agreement by two or more persons to violate the narcotics laws; (2) a defendant’s knowledge of the agreement; and (3) his voluntary participation in the agreement.” See id. (quoting United States v. Bargas-Ocampo, 747 f.3d 299, 303 (5th Cir. 2014) (en banc)). The Court then stated, “That is all the government needs to prove to sustain a drug conspiracy conviction under 21 USC §§ 841(a)(1) and 846.” See id. at 410. The Court reasoned that an enhancement is different from an element of the primary offense because it only affects punishment, not guilt. Although it must be submitted to the jury as an element, because it increases the mandatory punishment under Alleyne v. United States, 570 U.S. 99, 103 (2013), a finding of fact that affects only the legally prescribed punishment does not become an element of the conspiracy offense. See id. at 410-11. In so holding, the Court cited United States v. Daniels, 723 F.3d 562 , 573 (5th Cir.) 2013, as supporting its position. On that basis, the Court sustained the district court’s denial of the judgment for acquittal. See id. at 411.

Sentencing Implications

The Court then addressed the impact of the jury’s finding that Aguirre-Rivera did not have knowledge of the scope of the conspiracy. The Court held that even though the conviction was not affected by the jury’s finding, “the sentence most certainly was.” The defendant was sentenced under the guideline range for Conspiracy to Possess with Intent to Distribute 100 Gams or More of Heroin in violation of 21 U.S.C. §§ 841(b)(1)(B). This was improper since the jury’s negative answer to the question regarding the amount of heroin involved in the conspiracy negated any enhancements under § 841(b).” See id.

Legal Basis for Sentencing Implications

The Supreme Court has held “that factual determinations that increase maximum or minimum sentences, other than a prior conviction, must be found by a jury beyond a reasonable doubt.” Apprendi v. New Jersey, 530 U.S. 466, 490 (2000); see also Alleyne v. United States, 133 S.Ct. 2151, 2158, (2013); United States v. Haines, 803 F.3d 713, 738 (5th Cir. 2015).

The Aguirre-Rivera Court held: “Because the quantity of heroin involved” in a drug conspiracy case can affect a defendant’s “minimum sentence[] under §841, it must be found by a jury.” Id. In this case the jury’s answer to the second special interrogatory negated any enhancements under §841(b). Therefore, Aguirre-Rivera could not be subject to any mandatory minimum. He should have been sentenced under  §841(b)(1)(C), which gives the sentencing range for drug conspiracy violations not subject to additional enhancements under §841(b)(1)(A), (B), or (D). Aguirre-Rivera, 8 F.4th at 411.

One More Time, in English

Aguirre-Rivera was charged with participating in a conspiracy involving a kilo or more of heroin under 21 U.S.C §§ 841(a)(1), (b)(1)(A)(I), and 846. The jury found that he did not know the conspiracy involved over a kilo of heroin. So, the district court sentenced Aguirre-Rivera under §841(b)(1)(B) for a conspiracy involving 100 grams or more of heroin, which carries a minimum of 5 years. However, the jury did not make a finding that Aguirre-Rivera knew any amount of heroin involved in the conspiracy, so he could not be charged with even that reduced amount of heroin. Aguirre-Rivera should have been sentenced under §841(b)(1)(C), which is the range of punishment for an offense without an enhancement for the amount of drugs involved in the conspiracy.

The district court sentenced Aguirre-Rivera under a statute which had a range of punishment of 5 years to 40 years. He should have been sentenced within a range of punishment of no more than 20 years. The proper statute for sentencing was §841(b)(1)(C), which has no mandatory minimum sentence.

Was there Harm?

Aguirre-Rivera was sentenced to 60 months in prison. This was the minimum sentence under §841(b)(1)(B). The length of the sentence held significance with the Court. “The court then proceeded to sentence Aguirre-Rivera to 60 months in prison and three years of supervised release- a sentence coinciding almost exactly with the mandatory minimum under §841(b)(1)(B).” Aguirre-Rivera, 8 F.4th at 412. Since the Court held that Aguirre-Rivera should have been sentenced without any mandatory minimum under §841(b)(1)(C), the Court found that there was harm. The Court noted that the district court, despite saying that the sentence would have been the same even if any error was made in the calculation of the guidelines, also stated, “[i]f it turns out that [Aguirre-Rivera’s] lawyers are correct, and if we have lower guidelines, I would be the first to be happy to revisit the case in order to make a correction to any mistake that this may have resulted in.” Id. The Court found that this statement confirmed that Aguirre-Rivera may have been harmed by the error. The Court stated, “Given that the district court expressed willingness to revisit the case and correct any errors inherent in Aguirre-Rivera’s sentence, we cannot say that the government has carried its burden of demonstrating beyond a reasonable doubt that the district court would have imposed the same sentence regardless of any error.” Id. at 412-13.

My Thoughts

In my opinion, the Aguirre-Rivera case is more important to the trial lawyer than it is to the appellate practitioner. The case is a reminder to the trial lawyer, facing the prospects of trying an unwinnable case or pleading to an outlandish guideline range, that there may be an issue to try if the client held a minor role in the conspiracy. This issue is often present in cases involving “mules” or persons  enlisted to perform tasks by the primary conspirators. The results of a jury finding that the defendant lacked knowledge of the scope of the conspiracy at trial could greatly reduce a client’s guidelines just as it did in this case. Winning this issue could go a long way toward earning your client    a deduction for his role in the offense. It would be hard for the judge to find your client was a major player in the conspiracy when a jury found that your client did not know the scope of the conspiracy. See USSG §§2D1.1(a)(5) and 3B1.2. A finding that your client played a minor role in the conspiracy could also eliminate the two-level increase for importation in cases involving methamphetamine under USSG § 2D1.1(b)(5). Remand for sentencing under the correct guidelines was made possible in this case because the district court judge was more interested in the correct application of the law than in protecting against a remand.

Federal Corner: Ensuring That Clients Receive Credit for Concurrent State Time

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Many of our clients are dismayed to learn that they face charges in federal and state court for the same exact conduct or for relevant conduct.  Fortunately, the federal sentencing guidelines provide that where the state offense “is relevant conduct to the instant offense of conviction under the [relevant conduct provisions], the sentence for the instant offense shall be imposed to run concurrently to the anticipated term of imprisonment.”  (emphasis added).  U.S.S.G. § 5G1.3 Comment n. 3.  So problem solved, right?

Not exactly.  If the client was taken into federal custody on a writ of habeas corpus ad prosequendum, even if the judge sentences him to “concurrent time” with the state offense, the federal Bureau of Prisons (BOP) might not give him credit for all of the time spent in federal custody awaiting sentencing.  The Fifth Circuit’s decision in United States v. Taylor, 973 F.3d 414 (5th Cir. 2020) provides important guidance on how to ensure that clients awarded concurrent sentences for federal and state charges actually receive full credit for that time.

Importantly, Taylor recognized that district courts wishing to award credit for time served while awaiting sentencing should not attempt to award “credit,” and should not state a commencement date for the federal sentence earlier than the date of federal sentencing.  They should instead reduce the sentence by the amount of time the defendant has been in federal custody awaiting sentencing. Judge Wiener’s opinion reads, in part, as follows:

An Overview of the Case

Defendant-Appellant Tyvon Taylor appeals the 120-month sentence imposed by the district court following his plea of guilty to one count of being a felon in possession of a firearm. Taylor contends that: (1) The district court erred when it attempted to reduce the length of his sentence either by ordering that the sentence commence on a particular date or by ordering that he be given credit for time served, and (2) The sentence imposed by the district court is impermissibly ambiguous because the pronouncement that it “run concurrently with any sentence imposed by state authorities” does not specify with which state sentence or sentences, corresponding to four pending state court charges, the federal sentence will run concurrently.

We conclude that the district court’s attempted reduction of Taylor’s sentence was ineffectual and order a limited remand for the district court to consider, and state on the record, whether that court would have imposed the same sentence regardless. We also conclude that the sentence imposed is ambiguous because it fails to identify the specific state sentence or sentences with which the federal sentence will run concurrently. We therefore order a limited remand for the district court to consider, and state on the record, whether that court would have imposed the same sentence knowing of the ambiguity.

The Federal Charges

In June 2018, a federal grand jury returned a one-count indictment charging Taylor with being a felon in possession of two firearms, viz. a .40 caliber Springfield Armory pistol and a Smith and Wesson 9mm pistol, beginning on or about August 12, 2017, and continuing until on or about August 15, 2017. In October 2018, Taylor pleaded guilty, and the district court ordered the preparation of a presentence report (PSR).

The “offense conduct” section of the PSR includes information about Taylor’s involvement in shootings on August 12 and 13, 2017. That section of the PSR also includes information regarding an August 15, 2017 traffic stop of a vehicle in which Taylor was a passenger during which officers found Taylor in possession of firearms.

The PSR reflects that, during the August 12, 2017 incident, Shreveport (Louisiana) Police Department officers responded to a shooting and located a victim suffering from multiple gunshot wounds. That victim identified Taylor as his assailant. Investigators located .40 caliber and 9mm caliber shell casings at the scene.

The August 13, 2017 incident involved officers responding to a call of shots fired and observing an empty vehicle crashed into a light pole. The PSR noted that investigators located spent shell casings and live rounds in and around the vehicle. The owner stated that Taylor had borrowed the vehicle. Taylor was identified as the person driving and shooting from the vehicle prior to the crash and was observed fleeing from the vehicle prior to the arrival of the police.

As for the August 15, 2017 traffic stop, the PSR recounted that, after procuring an arrest warrant for Taylor, police had arrested him during a traffic stop of a vehicle in which he was a passenger. The driver of the vehicle stated that once police attempted to initiate the stop, Taylor had pointed two handguns at him and accused him of setting up Taylor. As noted, police located a Smith and Wesson 9mm handgun and a .40 caliber Springfield Armory handgun in the vehicle. The analysis conducted on the two firearms in Taylor’s possession at the time of his arrest determined that they matched shell casings found at the scenes of the August 12 and August 13 shootings.

The Pending State Charges

The PSR also listed four pending state charges:

(1) July 31, 2017 (case number 351,576) related to possession of a firearm or carrying a concealed weapon by a convicted felon and illegal use of weapons during violence;

(2) August 12, 2017 (case number 351,577) related to attempted second degree murder and possession of a firearm or carrying a concealed weapon by a convicted felon;

(3) August 13, 2017 (case number 351,999) related to illegal use of weapons or dangerous instrumentalities and possession of a firearm or carrying a concealed weapon by a convicted felon; and

(4) August 15, 2017 (case number 351,578) related to possession of a firearm or carrying a concealed weapon by a convicted felon.

Taylor’s Sentencing Memorandum

Taylor did not object to the PSR, but he did file a sentencing memorandum in which he requested that his sentence be at the low end of the guidelines range and run concurrently to any sentences imposed in the four pending state court charges, pursuant to U.S.S.G. § 5G1.3(c):

If … a state term of imprisonment is anticipated to result from another offense that is relevant conduct to the instant offense of conviction under provisions of subsections (a)(1), (a)(2), or (a)(3) of § 1B1.3 (Relevant Conduct), the sentence for the instant offense shall be imposed to run concurrently to the anticipated term of imprisonment.

Taylor’s Request at Sentencing

At the sentencing hearing, defense counsel asked “the Court to specifically give Mr. Taylor the credit for time served from the date he was taken into federal custody, which is the July 9 of 2018 date.” Defense counsel noted that Taylor had already served nine or ten months on the state court charges prior to that date, and he speculated that the Bureau of Prisons would not credit Taylor for that time in state custody. Defense counsel suggested that the district court “go back and make the sentence retroactive to the July 9 of 2018 date.”

District Court’s Pronouncement of the Sentence

The district court observed that the guidelines sentence had been substantially increased because of the relevant conduct but determined that the application of the attempted murder guideline was appropriate. The court sentenced Taylor to the within-guidelines statutory maximum of 120-months imprisonment and a three-year period of supervised release.

In pronouncing the sentence, the district court stated, “[t]he judgment in this particular matter will show that this sentence is to run concurrently with any sentence imposed by state authorities on the conduct described, and this Court will begin the federal sentence as of the time he is taken into federal custody, which is July 9, 2018.” The written judgment provides, “[t]his sentence shall run concurrently with any sentence imposed by state authorities on the conduct described. Defendant shall receive credit for time served from July 9, 2018.”  At the sentencing hearing, defense counsel objected to the sentence to the extent that the statutory maximum sentence deprived Taylor of the benefit of a guilty plea.

Taylor’s Arguments on Appeal

Taylor here takes issue with the sentence imposed by the district court for two reasons. He first contends that the district court erred when it attempted to reduce the length of his sentence either by giving him credit for time served in federal custody prior to the sentencing (as did the oral pronouncement) or by commencing his sentence retroactively (as did the written judgment). Taylor also claims that the sentence is impermissibly ambiguous because it does not specify with which state sentence or sentences (corresponding to the four pending state court charges) the federal sentence will run concurrently. Taylor requests that we vacate his sentence and remand to the district court to permit that court to: (1) consider reducing his federal sentence by an amount equal to the period of time he served in federal custody prior to being sentenced and (2) clarify with which state sentence or sentences his federal sentence will run concurrently.

Taylor Invited the District Court’s Error

Taylor invited the district court’s error with respect to the backdated commencement of his sentence and the credit for time served in federal custody prior to being sentenced. At the sentencing hearing, defense counsel asked “the Court to specifically give Mr. Taylor the credit for time served from the date he was taken into federal custody … July 9 of 2018.” Defense counsel also suggested that the district court “go back and make the sentence retroactive to the July 9 of 2018 date.”

“The Fifth Circuit will not reverse on the basis of invited error, absent manifest injustice.” Manifest injustice occurs when the district court’s “error was so patent as to have seriously jeopardized the rights of the appellant.”

Taylor Argues that Manifest Injustice Occurred

Taylor insists that a manifest injustice occurred because (1) the district court intended to reduce his sentence by the number of days he served in federal custody prior to being sentenced and (2) the ineffectual sentence fails to do so. In the oral pronouncement of the sentence, the district court stated, “this Court will begin the federal sentence as of the time [Taylor] is taken into federal custody, which is July 9, 2018.” The written judgment provides, “Defendant shall receive credit for time served from July 9, 2018.”

What the District Court Should Have Done

The district court is not permitted to compute the credit for time served or to order the backdated commencement of a sentence. The BOP alone is authorized to take these actions.  If the district court intended to award Taylor credit for the time he served in federal custody prior to being sentenced, that court should have reduced his sentence accordingly and noted the reason for the reduction in the judgment. (emphasis added). 

The Fifth Circuit Orders Limited Remand on the Length of the Sentence

Although the limited remand is a seldom-used practice in this circuit, we deem that procedure warranted in a case such as this. It is not apparent here that the defendant was harmed by an error because it is not clear whether the district court would have acted differently had it known of the error.  We order a limited remand so that the district court may consider, and state on the record, whether it would have imposed the same sentence knowing that it could not order either that (1) the commencement of Taylor’s sentence be backdated or (2) Taylor receive credit for the time he served in federal custody prior to sentencing.  If on remand the district court clarifies that it would not have imposed the same sentence, then the error Taylor invited is manifest, and we would vacate Taylor’s sentence and remand for resentencing. If, on the other hand, the district court indicates that it would have imposed the same sentence even knowing the limitations regarding the commencement of the sentence and credit for time served, then we would conclude that no manifest injustice occurred and would affirm the sentence.

The Fifth Circuit Orders Also Orders Limited Remand on the Concurrent Nature of the Sentence

We conclude that the district court committed an obvious error when it imposed an ambiguous sentence that fails to specify with which of the state sentence or sentences the federal sentence will run concurrently. But it is not clear whether the ambiguous nature of Taylor’s sentence affected his substantial rights, so we order a limited remand for the district court to clarify, and state on the record, whether it would have imposed the same sentence had it known of the ambiguity.

Conclusion

We order a LIMITED REMAND to the district court to consider, and state on the record, whether it would have imposed the same sentence knowing that: (1) it could not effectively order the backdated commencement of Taylor’s sentence, (2) it could not effectively order that Taylor be given credit for the time he served in federal custody prior to being sentenced, and (3) the sentence is susceptible of more than one reasonable interpretation. We retain jurisdiction over this appeal pending the district court’s answer to our inquiry.

My Thoughts

  • Clarity is key to ensuring that our clients receive credit for concurrent time.
  • Asking the Court to reduce your client’s sentence by the amount of time awaiting federal sentencing is not a downward departure or a variance.  Rather, it is an adjustment contemplated by the guidelines, and now by the Fifth Circuit.  See United States Sentencing Guidelines § 5G1.3, Comment n. 2(C).

Federal Corner: “and” means “and” Safety Valve is Open Facts of the Case

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United States v. Lopez, 988 F.3d 431 (9th Cir. 2021)
First Step Safety Valve Application

In December of 2018, Eric Lopez, a thirty-five-year-old man from South Gate California, drove across the United States Mexico border in Otay Mesa, California. The Customs and Border Protection Officer noticed a “soapy-odor” coming from the vehicle and referred him to secondary. The secondary inspection of Lopez’s vehicle revealed packages containing methamphetamine. He was arrested and charged with importing at least fifty (50) grams or more of a substance containing methamphetamine in violation of Title 21 U.S.C. §§ 952 and 960. He entered a guilty plea.

Sentencing

At sentencing, the district court explained that Lopez’s Pre-Sentence Investigation Report (“PSR”) revealed only one relevant conviction under the sentencing guidelines. When Lopez was twenty-two years old, he spray-painted a sign onto a building. Lopez was convicted of vandalism. He served 13 months of imprisonment for that vandalism conviction. The Sentencing Guidelines Manual § 4A1.1(a) states that the district court must add 3 points for each prior sentence exceeding thirteen months of imprisonment. The district court agreed with Lopez’s counsel, though, that Lopez only met the criteria under 18 U.S.C. § 3553(f)(1)(B), a prior three-point offense, and that he did not meet the other two parts of the criteria under §3553(f)(1).

The government argued that the safety valve criteria under the First Step Act of 2018 was to be read in the disjunctive. The Act was amended in 2018 to change 18 U.S.C. § 3553(f)(1) from allowing no more than 1 criminal history point if: (1) the defendant does not have – (A) more than 4 criminal history points . . . ; (B) a prior 3-point offense . . . ;  and (C) a prior 2-point violent offense [emphasis added] The district court recognized that the ability to sentence below the guidelines turned on Lopez’s argument that the statute required all three in the conjunctive as opposed to the government’s position. Lopez was eligible for safety-valve relief under the district court’s conjunctive interpretation because, while he had a prior 3-point offense, he did not also have the other two criteria. The court then sentenced him to four years (48 months) of imprisonment. This was one (1) year less than the five-year (60 month) mandatory minimum. The government timely appealed.

Appeal: “and” means “and”

The Court of Appeals went through a very in-depth examination of the word “and.” The government conceded that the plain and ordinary meaning of § 3553(f)(1)’s “and” was conjunctive. See Lopez at 436. Their analysis started with that concession and an examination of Merriam-Webster:

For the past fifty years, dictionaries and statutory-construction treatises have instructed that when the term “and” joins a list of conditions, it requires not one or the other, but all of the conditions. See, e.g., Merriam-Webster’s Collegiate Dictionary 46 (11th ed. 2020) (defining “and” to “indicate connection or addition”); Antonin   Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 116-20 (2012) (stating that “and” combines a list of conditions in a statute); New Oxford American Dictionary 57 (3rd ed. 2010) (stating that “and” is “used to connect words of the same part of speech, clauses, or sentences that are to be taken jointly”) (emphasis added); Oxford English Dictionary 449 (2d ed. 1989) (stating that “and” introduces “a word, clause, or sentence, which is to be taken side by side with, along with, or in addition to, that which precedes it”) (italics omitted); Webster’s Third New International Dictionary 80 (1967) (defining “and” to mean “along with or together with” or “as well as”).

See id. The Court then moved to acknowledging that “Congress recognized the problem and sought to give district courts more flexibility” in sentencing below mandatory-minimum sentences that were “unnecessary and harsh.” See Lopez at 435. In addition to Merriam Webster, the Court examined the Senate’s Legislative Drafting Manual 64.

The thrust of the argument lay with the fact that the Court determined that Section 3553(f)(1) is “a conjunctive negative proof.” Lopez at 436. To be eligible for the safety valve, a defendant must prove that he or she does not have the following: (A) more than four criminal-history points, (B) a prior three-point offense, and (C) a prior two-point violent offense. See id.

It only made a footnote, but Justice Scalia and Bryan Garner had an example of the opposite – disjunctive negative proof:

“To be eligible for citizenship, you must prove that you have not (1) been convicted of murder; (2) been convicted of manslaughter; or (3) been convicted of embezzlement.” See Scalia & Garner, supra, at 120 (emphasis added). The person applying for citizenship must “have done none” of the three conditions. Id. If a person is convicted only of murder, for example, that person is automatically ineligible for citizenship under this example of a disjunctive negative proof. See id.

Lopez at fn. 7.

The Court found that this was the opposite of what was intended by Congress with the First Step Act. Congress intended the statute to “allow judges to … use their discretion to craft an appropriate sentence that will fit the crime.” See Lopez at fn. 6.

The government argued that the conjunctive could produce “absurd” results. The government pointed out that a career offender with several drug convictions – but who did not have a violent act conviction – could be eligible for safety-valve relief under a conjunctive interpretation. Id. at 438–39. The Court disagreed that the hypothetical would lead to “absurd” results.  The Court found that a conjunctive interpretation results in § 3553(f)(1) not barring non-violent repeat drug offenders from a safety-valve application while violent repeat drug offenders will almost always be barred. Id. at 439. In another footnote, though, the Court dealt with the career hypothetical even more succinctly, noting that if a career drug offender did qualify for safety valve relief, a district court would still retain discretion to sentence the career drug offender above the mandatory-minimum sentence. Id. at fn. 8.

The government further argued that failing to read parts (B), 2-point violent offense, and (C), three-point offense, was superfluous in the conjunctive because any defendant who has (B) a “prior 3-point offense” and (C) a “prior 2-point violent offense” will always have five criminal history points and therefore meet (A) “more than 4 criminal history points.” Id. at 440. The Court concluded that a conjunctive interpretation did not render the language superfluous and noted that a three-point violent offense can simultaneously satisfy two subsections, (B) and (C), while not satisfying subsection (A). See id.

In sum, the majority stated that “courts must presume that a legislature says in a statute what it means and means in a statute what is says there…too many reasons – plain meaning, structure, the Senate’s own legislative drafting manual, and consistent interpretations” support its conclusion that § 3553(f)(1)’s “and” is unambiguously conjunctive. See Lopez at 441. Further, they noted that § 3553(f)(1)’s plain and unambiguous language could possibly result in more defendants receiving safety-valve relief than some in Congress anticipated…but sometimes Congress uses words that reach further than some members of Congress may have expected and Congress has “the authority to amend the statue accordingly” if “and” was supposed to be “or.” Id. at 444.

Dissent (in part)

Circuit Judge Smith wrote an opinion concurring in part and dissenting in part. The opinion focuses on the majority’s analysis of parts (B) and (C). Judge Smith focused on the fact that the Guidelines separate those two classes of convictions and the First Step Act included language stating this in § 3553(f)(1)(C)- a prior 2-point violent offense, as determined under the sentencing guidelines. He therefore agreed with the government that a conjunctive interpretation of “and” renders subsection (A) surplusage but also agreed with the majority that this superfluity does not change the outcome. Id. at 446.

Judge Smith’s opinion concludes that Congress may very well have intended that the safety valve exclude only a very specific subset of individuals or that there was something particularly disqualifying about having both a prior two-point violent offense and a prior three-point offense. Id. at 447.

Conclusion

In sum, Lopez clarifies and changes the scope of who may qualify for safety valve relief and practically who does not qualify – individuals with 4 total points, a 3-point offense and a 2-point violent offense. It’s time to ensure we evaluate our cases closely. Although, as the majority and dissent pointed out, just because they qualify does not mean that a judge does not retain the discretion to sentence above the mandatory minimum.

Federal Corner: Thomas v. Lumpkin

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Capital federal habeas proceedings, or the civil procedure and law governing challenges to state capital sentences in federal court, is a narrow area of practice. These cases often turn on complex procedural issues and federal courts apply a standard of review that is highly deferential to state courts. As a result, federal habeas relief from a death sentence is vanishingly rare. In the broader field of criminal defense, however, this small number of cases offers a rare glimpse into how a single remark in state court or single sentence in a state court opinion can have outsized importance in federal court.

Federal post-conviction review of Texas sentences of death is governed by Chapter 153 of the Antiterrorism and Effective Death Penalty Act of 1996, known as AEDPA. AEDPA was enacted with the interests of federalism and finality as its driving force. Chapter 153 was accordingly designed to narrowly limit federal courts’ review of state court convictions and sentences of death. For example, 28 U.S.C. § 2254(d) reads:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim–

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

In other words, where a state court has determined that a claim does not warrant relief from a petitioner’s capital conviction and sentence, a federal court may not come to a different decision unless a petitioner can satisfy one of two very narrow exceptions: either that the state court unreasonably (not just incorrectly) applied an on-point Supreme Court decision or that the state court made an unreasonable (not just incorrect) factual finding.

Section 2254 imposes a notoriously high bar on capital petitioners and will almost always frustrate merits review by a federal court even where a claim goes to the very reliability of a sentence of death. The Fifth Circuit’s recent decision in Thomas v. Lumpkin, 995 F.3d 432 (5th Cir. 2021), illustrates how Section 2254 operates  to prevent a federal court from granting relief from a sentence of death where the jury was tainted by racial bias. In federal court, Mr. Thomas sought to challenges his sentence, in part, on the ground that the jury that sentenced him to death was tainted by racial bias. The majority briefly summarized:

In March 2005, an all-white jury found Thomas guilty of capital murder and sentenced him to death.

The dissent further explained:

An all-white jury found Thomas, a black man, guilty of capital murder and sentenced him to death for killing his wife, a white woman, and two children, including their interracial child. That jury included three jurors who acknowledged bias against interracial marriage.

The Fifth Circuit’s majority opinion summarized Mr. Thomas’s briefing on this issue:

Thomas emphasizes to this court that “his jury included three jurors who admitted that they harbored bias against ‘people of different racial backgrounds marrying and/or having children.’” As we previously discussed, attitudes about interracial marriage were explored because the defendant Thomas, who is a black man, married Laura Christine Boren, a white woman. Though Thomas killed his wife and their own interracial child, Andre Jr., the murder for which he was tried was that of Leyha Marie, his wife’s child by her later relationship. The briefing does not indicate the race of that victim, nor does it raise any issues about race having affected the trial beyond juror attitudes about an interracial marriage and the couple having a child together.

After block-quoting the sections from the jury questionnaire about prospective jurors’ views on interracial marriage, the Fifth Circuit examined the three contested jurors’ answers to those questions and in voir dire. The Fifth Circuit observed that “only one” of the three jurors at issue had answered that:

[H]e “vigorously oppose[d] people of different racial backgrounds marrying and/or having children and [was] not afraid to say so.” [He] was the only one of those three jurors who was questioned on voir dire specifically about racial attitudes. Counsel asked how [he] would feel about sitting on a capital case where the black male defendant was accused of killing his wife, a white female. He answered,

Well, I think—I think it’s wrong to have those relationships, my view, but we are all human beings and God made every one of us. And, you know, as far as—I don’t care if it is white/white, black/black, that don’t matter to me. If you’ve done it, you are a human being, you have got to own up to your responsibility.

  1. So, the color of anyone’s skin would not have any impact or bearing upon your deliberations?
  2. No, not according to that, no.
  3. Okay.
  4. Not whether they were guilty or innocent.

Defense counsel then asked again whether [the juror] would take into account the defendant’s or victim’s race in deciding whether to impose the death penalty. [He] answered: “No, I wouldn’t judge a man for murder or something like that according to something like that, no, I would not.”

As to the other two contested jurors, the Court summarized their answers:

Another juror…checked the option on the questionnaire that his church’s position was that there “should not be” interracial marriage, and [he] indicated he agreed with that view. In response to Question 105, [he] checked the option that he “oppose[d] people of different racial backgrounds marrying and/or having children, but [he] tr[ied] to keep [his] feelings to [himself].” [He] was not specifically questioned about these answers. When the court asked him during voir dire if he could “make up [his] mind solely upon the evidence” presented, [he] answered that he could.

The final relevant juror . . . indicated that her church or spiritual affiliation did not have a position on interracial marriage, and she added: “It is not the church[’s] place to have a position on matters such as this.” Like [the second juror], she checked the option on Question 105 that she opposed interracial marriage and such couples having children but tried to keep those feelings to herself. She added her own explanation: “I think it is harmful for the children involved because they do not have a specific race to belong to.” [She] was not questioned about her answers at voir dire. The court asked whether she could assess the case based only on the evidence presented in the courtroom, and she stated that she could.

A majority of the panel proceeded with applying Section 2254(d) to Mr. Thomas’s claim of racial bias. The first question the panel majority addressed was how Mr. Thomas had raised his claim of racial bias in state court:

In order to understand the claims about juror racial bias presented in state court, we examine the state habeas application. Counsel filed 44 claims for relief in state court. The only one relevant for jury bias itself (as opposed to ineffectiveness of counsel on the issue) was Claim 20, which stated that the “presence of jurors opposed to interracial relationships deprived Mr. Thomas of a fair trial.” Thomas argued that the presence of racially biased jurors “raises overwhelming concerns that significant racial bias affected the decision-making process in Mr. Thomas’s capital trial.” He also contended it was “highly likely that the views of the four impaneled jurors who opposed interracial marriage prevented or substantially impaired ‘the performance of [their] duties as [] juror[s] in accordance with [their] instructions and [their] oath.’”

In accordance with Section 2254(d), the Court then identified the state court’s adjudication of that claim:

The only relevant fact findings by the state habeas court were these:

All members of Mr. Thomas’s jury were white.

There is no evidence that the jury’s decision was racially motivated.

No objection was ever made by the Applicant to the purported racial bias of any juror that was seated.

There were no legal conclusions about jury racial bias other than as to the effectiveness of counsel.

(emphasis added)

Because Section 2254(d) requires a reviewing federal court to determine, as the next step in its analysis, whether a state court’s adjudication was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” the panel summarized the relevant Supreme Court case law:

We begin our analysis of the law with essential points: “blatant racial prejudice is antithetical to the functioning of the jury system.” Pena-Rodriguez v. Colorado, 137 S. Ct. 855, 871 (2017). It is undeniable “that discrimination on the basis of race, ‘odious in all aspects, is especially pernicious in the administration of justice.’” Id. at 868 (quoting Rose v. Mitchell, 443 U.S. 545, 555 (1979)). Any “defendant has the right to an impartial jury that can view him without racial animus, which so long has distorted our system of criminal justice.” Georgia v. McCollum, 505 U.S. 42, 58 (1992). If a defendant is denied the right to an impartial decisionmaker, regardless of the nature of the bias, any subsequent conviction is tainted with constitutional infirmity. See Virgil [v. Dretke], 446 F.3d [598] at 607 [(5th Cir. 1996)]. Any juror who “the defendant has specific reason to believe would be incapable of confronting and suppressing their racism” should be removed from the jury. See McCollum, 505 U.S. at 58. If a juror should have been removed for cause, then seating that juror requires reversal. United States v. Martinez-Salazar, 528 U.S. 304, 316 (2000).

A defendant’s right to an impartial jury, though fundamental, does not mean that jurors who have preconceived notions cannot be validly seated. To the contrary, as the Supreme Court has instructed:

To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.

Irvin v. Dowd, 366 U.S. 717, 723 (1961).

After identifying the relevant Supreme Court case law, the Court again turned its attention to how Mr. Thomas’s claim of racial bias by the jury was dealt with by the state court:

Thomas presented his argument on this claim to the state habeas court in four short paragraphs. Quoting Wainwright v. Witt, 469 U.S. 412, 424 (1985), he argued that it was “likely that the views of the four impaneled jurors who opposed interracial marriage prevented or substantially impaired ‘the performance of [their] duties as a juror in accordance with [their] instructions and [their] oath.”

In response to this argument, the state court found “[t]here is no evidence that the jury’s decision was racially motivated.” That finding is not directly on point as to whether any juror with a relevant bias that made him or her unable to be impartial was seated on the jury.

Despite conceding that “we can identify no state-court findings directly on the point of whether a biased juror was seated,” the panel continued on with its analysis of whether the state court’s adjudication of Mr. Thomas’s claim was unreasonable:

Indeed, “determining whether a state court’s decision resulted from an unreasonable . . . factual conclusion does not require that there be an opinion from the state court explaining the state court’s reasoning.” Richter, 562 U.S. at 98. Rather, a federal court will deny habeas relief “if there was a reasonable justification for the state court’s decision” in the record. Id. at 109.

The issue before us, then, is whether it was “objectively unreasonable” for the state habeas court to reject Thomas’s claim that his right to an impartial jury was violated. See Miller, 420 F.3d at 360. In reviewing whether the state court erred when it did not find that someone with disqualifying racial attitudes was seated as a juror, we should consider any “reasonable justification for the state court’s decision.” See Richter, 562 U.S. at 109. A necessary implicit finding within the state court’s explicit finding is that no juror would base his decision on race rather than on the evidence presented. To rephrase, any bias of a juror could be set aside in determining guilt or a punishment. We now turn to determine whether that finding was “objectively unreasonable.” See Miller, 420 F.3d at 360.

Here, the majority emphasized the first contested juror’s answer in voir dire that he could set aside his expressly racist views:

In evaluating the state habeas court’s finding and any possible reasonable justifications, we consider the answers [he] gave during voir dire. The questioning did not cause [him] to retreat on his beliefs about interracial marriage. Still, when asked if “the color of anyone’s skin would . . . have any impact or bearing upon [his] deliberations,” [he] responded, “No, not according to that, no.” He “wouldn’t judge a man for murder or something like that according to something like [race], no, I would not.” [He] also said that he didn’t “care if it was white/white, black/black, that don’t matter.”

On that record, the state court found “no evidence that the jury’s decision was racially motivated.” We consider it a reasonable understanding of that finding that [his] answers, if accepted as true, which the state habeas court was entitled to do, were clear that his moral judgment would not affect his fact finding. (emphasis added)

The majority accordingly concluded: Thomas is not entitled to relief on the basis that the state court improperly resolved the claim that any partial jurors were seated. Section 2254(d), along with the rest of AEPDA, commands that federal courts defer to state courts’ adjudication on the merits of any claim also raised in federal court. But a state court’s opinion may not always squarely address, let alone resolve, the serious constitutional concerns about the reliability of a petitioner’s capital conviction and sentence of death. As the Thomas decision illustrates, however, one juror’s remark and one phrase in the state court’s opinion may be sufficient for a federal court to find that it will not disturb a sentence of death obtained by a jury tainted by racism.

Federal Corner: United States v. Robinson

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United States v. Robinson
Court is required to evaluate 18 U.S.C. § 3553(a) factors.

In United States v. Robinson, 741 F.3d 588 (5th Cir. 2014), a defendant received a re-sentencing for a district court’s failure to consider his cooperation under 18 U.S.C. § 3553(a). This case’s reasoning is important not only to the 5K departure that was requested, but also generally to any departure or variance that is requested.

Facts of the Case

This case reads like many other suppression cases-in 2010, investigators determined that there were images of child pornography in a suspect’s possession. The investigators obtained subscriber information and the Internet Protocol “IP” logs and traced them to a particular IP address assigned to the office of Accurate Roofing Company, Inc.

The investigators determined that the owner’s son appeared in one of the images and obtained a search warrant for both Robinson’s residence and his office. Robinson gave a statement initially but stopped when he was asked how pictures of his son ended up on another computer. The next day, after receiving his rights, he gave a full recorded confession.

Suppression and Conditional Plea

Robinson moved to suppress the evidence as well as the statement. He argued that the affidavit “failed to establish a nexus between the place to be searched and the evidence sought.” The district court denied the suppression motions after an evidentiary hearing. Robison obtained a conditional plea agreement and pled guilty to one count of production of child pornography, one count of distribution of child pornography, and one count of possession of child pornography.

Cooperation & Sentencing

Robinson filed a sentencing memorandum which, in relevant part, requested a lower sentence based on his cooperation with investigators in at least two other cases. At sentencing, Robinson urged the Court to consider a reduction under 18 U.S.C. § 3553(a)(2) of his sentence based on cooperation. The district court, however, stated, “it does you no good for the purposes of sentencing in that the Court does not have before it a U.S.S.G. §5K1.1 motion to consider.” The district court further stated that it was a “moot question” whether Robinson would have received a reduction under §5K1.1 because the Government had chosen not to file such a motion. There’s no reason given why they withheld the motion.

As an additional thought, the opinion discusses how Courts need to be specific when making findings. Ask the Court to specify why your client is not getting what you’re advocating for.

Appeal to the 5th Circuit

This case is not about the search and the Court of Appeals made short work of the suppression argument. However, it did provide help in the sentencing realm. The discussion started with outlining that the Court must conduct a two-step process at sentencing – first, calculate the sentence with the “now-advisory Sentencing Guidelines;” secondly, apply an individualized assessment.

Robinson made a winning argument that the Court must consider his cooperation in the individualized examination of his assessment under § 3553(a). The Court of Appeals held that the 5th Circuit was joining its sister circuits in expressly holding that a sentencing court has the power to consider a defendant’s cooperation under § 3553(a), irrespective of whether the Government files a § 5K1.1 motion. We further join our sister circuits in holding that a sentencing court’s failure to recognize its discretion to consider a defendant’s cooperation under § 3553(a)(1) is a significant procedural error.

Non-Harmless Procedural Error

In deciding that the Court committed a procedural error, the most significant point the Court of Appeals addressed was that the trial court appeared to believe its hands were tied and it could not depart.

The § 5K1.1 motion is certainly within the Government’s prerogative to file. They did not in this case. And, so, it’s a moot question as to whether or not you have—would have received a departure from the 720 months had the Government filed that motion. It’s simply not before the Court.

Robinson managed to avoid the dreaded “harmless error”-The Government argued that the error, if any, was harmless. The Court disagreed and discussed its reasoning in United States v. Burns, 526 F.3d 852, 862 (5th Cir. 2008) (holding that defendant was “entitled to have his sentence set by a judge aware of the discretion”) with the current scenario. In Burns, the defendant in a pre- Kimbrough v. United States, 552 U.S. 85, 128 S. Ct. 558, 169 L. Ed. 2d 481 (2007) (crack mandatory and minimums were the only required parts under statute, not the 100:1 disparity) had argued that the Court should grant a departure, but the Court had believed it could not.

However, Burns had an additional quirk where the Court stated that it would have imposed the same sentence if it would have considered the impermissible pre-Kimbrough disparity stating that “the Court [Burns district court] finds it has no—limited discretion, if any. And if I do have discretion, I exercise my discretion not to downward depart on that basis.” The Court of Appeals in that scenario reversed and remanded for another sentencing.

The Court of Appeals in Robinson found that it had even stronger reasons in the instant case, because the Court did not say that it would have given the same sentence if it had considered the assistance in the other two cases by Robinson. Unfortunately for Robinson, it appears from the re-sentencing that the Court did give the same sentence. That sentence was upheld on reasonableness grounds.

Practical Applications

I only knew one defense attorney who never felt the sirens call of the 5K. Unlike her, most of us, especially Criminal Justice Attorneys, will have to deal with cases like Robinson where our client decides to sell his soul and participate in a part of the process that is deeply baked into the federal system. Simply because a court has the discretion does not mean that it will exercise its discretion.

Going forward, what can the practitioner do to ensure that if his client decides to cooperate, that their cooperation has the best chance of being rewarded- either by the United States, which makes the matter straightforward, or by the Court’s 3553(a) analysis?

We need to look back at the pre-Booker case United States v. White, 71 F.3d 920, (DC Cir. 1995). In White, the defendant obtained a plea agreement to a regular (18 U.S.C. 371) conspiracy with a drug basis, but that plea agreement did not have a provision for cooperation. The Court there discussed that there was no “fairness” or “bad faith” review available under the Constitution. This would have been available to him if he had a plea agreement with a cooperation provision. It cited to United States v. Jones, 313 U.S. App. D.C. 128, 58 F.3d 688, 692 (D.C. Cir.) (noting that a plea agreement with substantial assistance provision “provides additional protection” because “like all contracts, it includes an implied obligation of good faith and fair dealing”). This brings us to a practice in the Western District where a defendant many times is faced with a sealed plea addendum in any case where there is a plea agreement. There may be a benefit to the inclusion in that plea agreement of 5K or cooperation language as you may be receiving “additional” protections.

The other issue that was raised by Robinson is why did the Government choose not to file a 5K? The Court “acknowledge[d]” the cooperation, but was it just not complete enough for the Government? White was illustrative on this point as well- it cited to United States v. Drown, 942 F.2d 55, 59 n.7 (1st Cir. 1991), that discussed a temporal limitation on passing the 5K cooperation from sentencing to a post-sentencing Fed. R. Crim. Proc. 35(b) motion. In Drown, the Court recognized a temporal stricture of 5K1.1 and rule 35(b), stating that a prosecutor must make a good faith evaluation of the assistance rendered before sentencing without considering the possibility of a later rule 35(b) motion. The Drown Court stated that failure to do so touches on a criminal defendant’s due process rights, but it unfortunately did not further explain or justify how.

Final Thoughts

  • Conditional plea agreements are rare in some jurisdictions, but vital as they are your only way to not waive pre-trial motions if a plea will be entered.
  • Consider taking that plea agreement with cooperation language.
  • Watch out for AUSAs who want to massage your cooperation past the sentencing date.
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