Defendants Convicted of Crack Offenses Who Received Cooperation Departures Below the Mando are not Barred From Seeking a Sentence Reduction Under Section 3582(c)(2)

In United States v. Savani, Nos. 11-4359/11-4494/12-1034, the Third Circuit held that Amendment 750 to the Sentencing Guidelines superseded United States v. Doe, 564 F.3d 305 (3d Cir. 2009), and allows defendants who were sentenced below their mandatory minimum sentences for substantial assistance to move for a sentence reduction under 18 U.S.C. § 3582(c)(2). The three appellants in Savani were in similar positions. All three were facing mandatory minimum sentences for crack offenses - Savani and Herbert were facing 10 years, and Roe was facing twenty years, due to his prior conviction. All three defendants entered into cooperation plea agreements with the government, and they all received sentences below the mandatory minimums.

After the Fair Sentencing Act ("FSA") was passed in August 2010, the Sentencing Commission amended U.S.S.G. § 2D1.1 by reducing the guidelines to correspond to the18:1 ratio that now triggers mandatory minimum sentences under the FSA. All three defendants filed motions to reduce their sentences under § 3582(c)(2). All three motions were denied by the district courts, citing Doe.

Doe held that the Sentencing Commission’s policy statement § 1B1.10(b)(2)(b), precluding sentence reductions if a defendant’s "applicable guideline range" is not reduced by the amendment, prevented reductions in cases like these. "Applicable guideline range" was not then defined, but the Doe Court ruled that it must mean the starting point for calculation of the sentence - in these cases, the mandatory minimum, not the crack guideline range. Thus, the defendants were ineligible under § 3582(c)(2), because even if their departures were somehow "based on" the now-lower crack guideline range, granting relief would be inconsistent with the Commission’s policy statement.

In 2011, however, when the Commission issued the most recent retroactive crack amendment, it also offered a definition of the term "applicable guideline range." According to Application Note 1(A) to U.S.S.G. § 1B1.10, the"applicable guideline range" is "the guideline range that corresponds to the offense level and criminal history category determined pursuant to U.S.S.G. § 1B1.1(a), which is determined before consideration of any departure provision in the Guidelines Manual or any variance." U.S.S.G. § 1B1.10 cmt. n.1(A).

In a 2-1 decision, the Court determined that this language supersedes Doe, and that the defendants were eligible for relief. The majority reached this decision on rule of lenity grounds. It first examined multiple Guidelines provisions, seeking to clarify the definition and the Commission’s intent, but it concluded that it was unclear whether - in the context of cooperators receiving substantial assistance departures - the definition referred to the guideline range or the mandatory minimum guideline sentence.

Judge Fuentes filed a separate opinion concurring in the result, but expressing the opinion that the plain language of the emergency amendments rendered the appellants eligible for sentence reductions. His opinion relied primarily on an analysis of the language of the definition as compared with the eight-step sentencing process.

The government is considering whether to seek rehearing or to petition for certiorari.  However, in the meantime, the government may not oppose bail for defendants who might otherwise be eligible for immediate release under the amendment.

Congratulations to Sarah Gannett for an amazing job, and special thanks for her help on this post!

Erroneous application of sentencing enhancement is harmless when it had no effect on the sentence

Judge Hardiman opened United States v. Zabielski, No. 11-3288, (April 3, 2013) by noting that since United States v. Booker, 543 U.S. 220 (2005), the Sentencing Guidelines were no longer “diktats.” However, trial judges must still accurately calculate the Guidelines range and correctly rule on departure motions. Though failure to do so will usually result in the Court of Appeals vacating a sentence and remanding for a new sentencing hearing, a sentencing court’s omission in this regard might be so immaterial that the error will be held harmless.  The insignificance of such an error is why Mr. Zabielski’s sentence was left intact.

Mr. Zabielski pled guilty to a bank robbery. He handed a note to a teller demanding $10,000. When the teller asked him what account he wanted to withdraw the funds from, he made clear that he was robbing the bank. One of the clues the teller noticed was a bulge in his jacket that looked like it held a gun or knife; the other was his statement that he was in a hurry.  He made off with $4767.00. Later, he told several people about the robbery, including his mother, who told him to give the money back.  He mailed most of it back from another town.  Still, within two days of the robbery, when interviewed by law enforcement, he lied about his whereabouts at the time of the crime. He was indicted, and pled guilty. Although his motion for a downward departure was denied at first, his allocution persuaded the sentencing court he was remorseful, and he received a thirteen month downward departure, and a sentence of only twenty four (24) months. Mr. Zabielski then appealed. His central claim was that the sentencing court erroneously applied a two level enhancement for threat of death.

Reviewing past cases, the Court found that Mr. Zabielski’s actions during the robbery— the bulge, the command to hurry (“you have two minutes”)— was not clearly a threat of death, as least by pre-Booker precedent. However, as a result of Booker, such enhancements are not as significant as they were before. Therefore, the Court went on to determine whether or not the error was harmless, which in this meant assessing whether or not the enhancement affected the sentence. Enhancements, the Court noted, are meant to highlight some particular set of facts from the crime. Sentencing errors are likely to be harmless when it is clear from the record that when the sentencing court decided to vary from the Guidelines, or even when an enhancement is erroneously applied, the sentencing court understood the facts of a case, grasped their significance, and incorporated them into a just sentence.

In this case, the Court found that the sentencing court demonstrated an awareness of the crime, including Mr. Zabielski’s demeanor, appearance, and statements when he robbed the bank. It appreciated the “context surrounding” Mr. Zabielski’s conduct. There was a thorough analysis of 18 U.S.C. §3553(e) factors, and Mr. Zabielski received a big break. The sentence was one that fell below the range that would have applied without the enhancement. All of this rendered any threat from the imposition of the enhancement harmless. The Court did warn that in the future, absent a statement from a sentencing court that the enhancement had no effect on the imposed sentence, it will be hard to state that any erroneous application was harmless.

Mr. Zabielski also challenged the “substantial reasonableness” of the sentence. He complained of the sentencing court’s reliance on unsubstantiated assumptions about his criminal record, unsubstantiated assumptions about his criminal background, mental health, and drug abuse, and his being sentenced to an increased term of imprisonment to facilitate his rehabilitation. Applying its deferential standard of review, it rejected these claims.  Though the sentencing court made stray and possibly speculative statements about Mr. Zabielski’s supposed drug abuse and mental health problems, the Court found that when viewed in the context of the sentencing court’s entire statement of reasons, those statements were not central to the explanation for the sentence.  Moreover, Mr. Zabielski did not dispute that he used illegal drugs and drank alcohol. Also, Mr. Zabielski had received treatment for mental illness. The sentencing court’s remarks on the subject were in response to his arguments that he would not receive proper treatment for mental illness in prison. Mr. Zabielski’s sentence of twenty-four months for a bank robbery therefore stood.

Photograph of 500,000th error in Major League Baseball from the New York Times.

Use of a drug-sniffing dog on a front porch is a Fourth Amendment intrusion

In Florida v. Jardines, 11-564 (March 26, 2013), in a 5-4 decision, the United States Supreme Court affirmed suppression of evidence of marijuana obtained in violation of the Fourth Amendment. After an unverified tip that Jardines was growing marijuana in his home, police observed the home for 15 minutes, saw no movement and could not see into the house through drawn blinds, and then brought a drug-sniffing dog onto the porch who ran around on a 6-foot leash and positively identified the odor of marijuana and the door to the home as the strongest point source of the odor. Based on those observations, officers obtained a search warrant. Justice Scalia, writing for the majority, found the case "straightforward." The porch is the curtilage of the home which enjoys protection as part of the home itself. Entry onto the porch with a trained drug-sniffing dog to find incriminating evidence was an unlicensed physical intrusion outside the scope of social custom. The officers’ purpose in entering the porch is relevant to whether they had an implied license to be there. Regardless of whether the investigation violated Jardines’ expectation of privacy under Katz v. United States, 389 U.S. 347 (1967), the officers’ conduct intruded upon the “property rights baseline” of the Fourth Amendment. Three concurring justices would have affirmed the suppression on privacy and property grounds.

922(g)(1) is a continuing offense so possession must be relinquished to support two convictions; constructive possession of gun and drugs; parole status was “helpful background” under 404(b)

In United States v. Benjamin, 11-2906 (3d Cir. March 26, 2013), Benjamin was convicted of possession with intent to distribute crack and marijuana and two counts of being a felon in possession. The same weapon supported the two felon-in-possession convictions: Benjamin used it at a gun range and it was also found in his house. On appeal, Benjamin did not challenge that he possessed the gun at a gun range. The Third Circuit affirmed that there was sufficient evidence for the drugs and gun possession under a theory of constructive possession. Constructive possession is established by dominion and control (“more” evidence), not mere proximity. The gun was found in the basement where Benjamin worked, a gun box was found under a shared bed, and ammunition was found in a shared closet. The government also argued evidence Benjamin was involved in the drug trade strengthened his connection to the gun. The drugs were found in a secreted location in the basement, an expert testified a book next to Benjamin’s bed was a drug ledger, and nitrile gloves (that an expert testified parolees use to avoid detection when packaging narcotics) were found in the kitchen and in Benjamin’s car. The Court found that entry of two convictions for being a felon in possession was error and the second conviction had to be vacated. The Court held that 18 U.S.C. § 922(g)(1) is a continuing offense so there must be an interruption in continuity and possession – relinquishment of actual and constructive possession – to charge it twice. There was no evidence that Benjamin’s constructive possession was ever interrupted, and evidence that Benjamin and his fiancée were not always home at the same time was insufficient. The Court also found this error was plain, affected Benjamin’s substantial rights because there are adverse consequences even when a defendant is sentenced to concurrent terms, and it was appropriate for the Court to use its discretion and grant relief. The Court found that continued reference to Benjamin’s parole status was admitted for the proper purpose of being “helpful background” under Federal Rule of Evidence 404(b). The references were essential to the trial and were also relevant to Benjamin’s motive for using an alias, using gloves to hide drug trafficking, and to explain Benjamin’s fiancée’s testimony about hiding the gun. Moreover, the court minimized the prejudice by precluding evidence that Benjamin had underlying drug trafficking convictions.

Reviewing for abuse of discretion, no attorney's fees under the Hyde Amendment for defendant after prosecution dismissed

In United States v. Manzo, 12-2294 (3d Cir. March 25, 2013), Manzo appealed the District Court’s denial of his request for attorney’s fees, which he had sought after a prosecution for violations of the Hobbs and Travel Acts was dismissed. Manzo had been a candidate for mayor of Jersey City and allegedly took campaign contributions with the promise he would help the contributor once elected. Under the “Hyde Amendment,” a statutory note to 18 U.S.C. § 3006A, a prevailing party may seek reasonable attorney’s fees if the position of the United States was “vexatious, frivolous, or in bad faith, unless the court finds that special circumstances make such an award unjust.” Reviewing for abuse of discretion, the Third Circuit affirmed denial of attorney’s fees. The Third Circuit explained a petitioner shows a prosecution was: (1) vexatious if the criminal case was objectively deficient and the government’s conduct “when viewed objectively, manifests maliciousness or an intent to harass or annoy”; (2) frivolous if the action was “groundless, with little prospect of success”; and (3) pursued in bad faith, meaning “not simply bad judgment or negligence, but rather . . . the conscious doing of a wrong because of dishonest purpose or moral obliquity.” The Court found the government had not acted vexatiously, frivolously, or in bad faith: (1) it had continued to prosecute under the Travel Act when the Hobbes Act counts were dismissed after the District Court’s first ruling that the New Jersey bribery statute clearly encompassed Manzo’s conduct, and (2) Manzo’s brother’s testimony that Manzo had not received cash from the cooperator, even if true, did not establish that the facts alleged in the indictment were blatantly false. The Court also rejected arguments based on conflict of interest and miscellaneous allegations of prosecutorial misconduct.

Third Circuit Weighs in on SORNA Interim Rule: Failure to Follow APA Procedures Means SORNA Cannot Apply Retroactively

In United States v. Reynolds, No. 08-4747, the Court held that the DOJ’s interim rule applying SORNA retroactively to defendants convicted before its enactment, is invalid due to DOJ’s failure to follow proper APA procedures. (The case was on remand from the Supreme Court, which ruled that Reynolds had standing to raise the APA issue.)

The Court considered three questions in Reynolds: (1) the proper standard of review — abuse of discretion or de novo — for reviewing an agency’s decision to forego notice and comment; (2) whether the Attorney General had "good cause" to waive the notice and comment requirement in promulgating the interim rule; and (3) if the Attorney General lacked "good cause," whether the failure to comply with the APA prejudiced Reynolds. There are Circuit splits on each of these issues (carefully described in the opinion)making it possible, if not probable, that the Supreme Court will take up some or all of the questions at some point.

The Court did not decide the first question on standard of review (which appears to be a thorny question on which even prior Third Circuit opinions are in tension). It concluded that even under the most deferential standard, the Attorney General’s decision to forego APA procedures did not pass muster.

The Attorney General had cited two main reasons as "good cause" for foregoing notice and comment. First, that delaying adopting of the rule would mean that the law effectively would not be retroactive; and second, that public safety required making the rule retroactive immediately. The Court rejected both. The first put the cart before the horse: the purpose of the notice and comment period would have been to seek input on whether retroactivity was the right result at all. The second was too generic: Congress knew that sex offenders were a threat to public safety when it enacted the law, but chose neither to legislate retroactivity nor to grant DOJ permission to evade the APA’s requirements. DOJ offered no additional evidence to support its "perception of urgency" in enacting the interim rule without notice and comment.

Because of the liberty interest at stake in a criminal proceeding, the Court placed the burden on the government to show that Reynolds was not prejudiced by the failure to follow the APA procedures. Here, given the complete failure to follow procedure, the government cannot meet that burden. There was no opportunity to develop a record, test the regulations, and ensure fairness to affected parties by the process, and there is no evidence that the Attorney General maintained a flexible and open-minded attitude toward the rulemaking.

Congratulations to the W.D. Pa. team (especially Candace Cain, Jay Finkelstein, Christopher Brown, and Lisa Freeland) on a great win!

Discovery of contraband in a shared cell is sufficient to warrant loss of good time credits

In Denny v. Schultz, Docket No. 11-1450 (3d Cir. Feb. 15, 2013), the Third Circuit considered the question of what limit the Due Process Clause places on the constructive possession theory in the prison context. Inmate Denny shared a cell with one other inmate. During a routine search of the cell, a corrections officer found two metal shanks located in the duct work of a ceiling vent. The duct was accessible from both Denny's cell and the adjacent cell, which housed an additional three inmates. Denny and his cell mate were both charged with possession of a weapon, but the inmates in the adjacent cell were not charged. Denny was sanctioned and received sixty days in disciplinary segregation and the forfeiture of forty days good time credit.

After exhausting his administrative remedies, Denny filed a 28 U.S.C. § 2241 petition. The district court sua sponte dismissed the petition, finding that the Disciplinary Hearing Officer's (DHO) findings were supported by "some evidence," including the fact that the contraband weapons were found in the duct work of Denny's assigned cell (citing Superintendent v. Hill, 472 U.S. 445, 454 (1985)). Denny appealed.

On appeal, the Third Circuit agreed that the "some evidence" standard applied and that it need only find that the DHO's decision had "some basis in fact" in order to affirm the decision as comporting with the Due Process Clause. The Court then noted that other courts to have considered this question have uniformly held that the discovery of contraband in a shared cell constitutes "some evidence" of possession sufficient to uphold a prison disciplinary sanction, including the loss of good time credits, against each inmate in the cell under a theory of collective responsibility or collective guilt. Applying this theory, the Court concluded that the undisputed discovery of two shanks in a space accessible within Denny's cell constituted "some evidence" that Denny possessed the weapons in question. Accordingly, the DHO did not violate Denny's due process rights by finding he had committed the prohibited act and sanctioning him with a loss of good time credit.

Judge Rendell filed a dissenting opinion, arguing that constructive possession required either the exercise of dominion or control, or the power and intention to exercise dominion or control, over the property. Because such evidence was absent, Judge Rendell would have reversed the district court's sua sponte dismissal of Denny's habeas petition and remanded for resolution on the merits.

General appellate waiver does not bar appeal of subsequent modification of terms of supervised release

Deciding a matter of first impression, the Third Circuit, in United States v. Wilson, Docket No. 12-1881 (3d Cir. Feb. 14, 2013), ruled that a defendant's broad, general waiver of appellate rights encompassed only his original sentence, not the subsequent modification of the terms of his supervised release.

Wilson pled guilty to two federal drug charges. His plea agreement contained a waiver of his right to appeal or collaterally challenge his conviction and sentence. After sentencing, Wilson filed a Notice of Appeal, but the Third Circuit enforced the waiver and affirmed his conviction and sentence. Wilson was eventually released from prison and began serving a six year term of supervised release. About three months into his term, his Probation Officer filed an application to modify the terms of Wilson's supervised release to include participation in a mental health program as an additional condition. The district court agreed to the requested modification and ordered Wilson to undergo a mental health assessment and, if necessary, to participate in an approved mental health treatment program.

Wilson appealed. The government moved to dismiss the appeal on the basis of the appellate waiver, arguing that the word "sentence" in Wilson's appellate waiver encompassed any challenge to the terms and conditions of that sentence, including subsequent modifications of the terms of his supervised release. The Third Circuit rejected this argument and adopted the reasoning of several other Circuits holding that a general waiver of appellate rights with respect the original sentence does not foreclose a challenge to a post-sentencing order modifying the terms and conditions of the original sentence. The Court found that, while Wilson's appellate waiver could reasonably be understood to encompass a waiver of  his right to appeal the "sentence" imposed at sentencing and memorialized in the judgment and commitment order, it did not waive a right to appeal a later modification of his "sentence."

After concluding that Wilson's appeal was not barred by the appellate waiver, the Third Circuit considered the merits of Wilson's appeal and affirmed the modification of Wilson's terms of supervised release.

Intended Loss Not Necessarily Potential Loss in Credit Card Fraud

In United States v. Diallo, ___ F.3d ____, 2013 WL 150125 (3d Cir., Jan. 15, 2013), the defendant pled guilty to possessing over 15 counterfeit credit cards. The government calculated an actual loss amount of $160,000. However, at sentencing, the government argued that the defendant should receive a 16-level enhancement, pursuant to U.S.S.G. § 2B1.1(b)(1), based upon the intended loss. Specifically, the government asserted that the counterfeit credit cards provided the defendant with access to a combined credit limit of $1.6 million. However, there was no evidence presented that the defendant actually knew the credit limits of the counterfeit cards. Nonetheless, the district court accepted the government’s argument and sentenced the defendant to 70 months, at the bottom of the 70-87 month guideline range. However, the Third Circuit refused to endorse a blanket rule that the intended loss amount should be the cards’s credit limit in every credit card fraud case. Citing United States v. Geevers, 226 F.3d 186 (3d Cir. 2000) and United States v. Titchell, 261 F.3d 348 (3d Cir. 2001), the court reiterated the general rule that the potential loss is not necessarily the intended loss in all fraud cases. Therefore, it would be error for the district court to presume that the aggregate credit limit alone is sufficient to constitute a prima facie case of intended loss in a credit card fraud case. Instead, the district court must conduct a "deeper analysis" to determine whether it is proper to equate potential loss with intended loss. After reviewing the district court’s analysis, the Third Circuit ruled that it was not sufficiently "deeper." The Third Circuit concluded that, based upon the district court’s limited analysis, it appeared that the district court simply equated potential loss with intended loss, which it had instructed against in Geevers and Titchell. The Third Circuit ultimately vacated the sentence and remanded the case for resentencing.