Wednesday, March 12, 2008

Government’s failure to establish element of offense results in reversal.

In United States v, Ambrose Daniel, No. 07-2413 (3rd Cir. March 6, 2008), the defendant Ambrose Daniel was convicted of unlawful possession of ammunition, in violation of Virgin Islands’ law. Daniel had initially been charged in an eight count indictment, including several federal offenses, but was only convicted of the ammunition offense. Daniel appealed his conviction, arguing there was insufficient evidence to convict him of that offense. The Third Circuit, in an opinion by Judge Roth, reversed, holding that the government had failed to prove a requisite element of the offense.

To prove that Daniel was guilty of unlawful possession of ammunition, the government had the burden of showing that: (1) he possessed ammunition on the day of his arrest; and (2) he was not licensed or otherwise authorized to possess the ammunition. In his jury instructions, the judge explained: "The phrase, ‘unless otherwise authorized by law’ means that the defendant had no license nor other legal authority to possession [of] ammunition." During the trial, the government called a witness to confirm that Daniel was not licensed to posses a firearm. However, the government presented no evidence as to whether he was licensed or otherwise authorized to possess ammunition. The government also failed to present any evidence on what was required to become authorized to possess ammunition.

The Third Circuit emphasized that it owed considerable deference to a jury’s guilty verdict. Nevertheless, the Court found that the government presented no evidence on the issue of authorization to possess ammunition. Virgin Islands’ law does not have a licensing requirement for ammunition and the law is unclear as to how one becomes authorized to possess ammunition. The government argued that the court should infer that Daniel’s possession of the ammunition was unlawful because he did not possess a firearms license. However, the Third Circuit refused to make such an inference, holding that it was the duty of the legislature to determine the standards for what constituted unlawful possession of ammunition. Also, the Court further ruled that the government could not meet its burden of proof by substituting proof that defendant was not authorized to carry a firearm, for proof that he was not authorized to possess ammunition.

Finally, the government argued that defendant had failed to raise an affirmative defense that he was authorized to possess a firearm even though he was not licensed. The Third Circuit rejected this position, finding that authorization to possess ammunition is not an affirmative defense. Accordingly, the Court reserved Daniel’s conviction.

Tuesday, March 04, 2008

Juvenile adjudication of "discontinuance" not a "sentence" under 4A1.2. Improper Guidelines calculation not harmless error.

United States v. Langford, No. 06-2774 (3d Cir. February 22, 2008) - Langford entered a guilty plea to bank robbery, armed bank robbery, and carrying and brandishing a firearm during a crime of violence. At sentencing, defense counsel argued that a prior juvenile adjudication that was "discontinued" should not be counted in Langford’s criminal history category. Specifically, that a "discontinuance" was not a sentence under § 4A1.2(a) and therefore a point should not be added - making Langford a category III, rather than a IV. The sentencing court disagreed and ruled that the "discontinuance" counted under § 4A1.2(a) and concluded that Langford was a criminal history category IV.

On appeal Langford argued that the district court improperly calculated his criminal history score and, as a result, started with an incorrect Guidelines range in the sentencing process. In turn, the government argued it was harmless error. In a majority opinion drafted by Judge Rendell (joined by Nygaard), the Third Circuit held that the "discontinuance" was not a sentence under § 4A1.2(a) and that the resulting improper Guidelines range was not harmless error.

With respect to the "discontinuance" the Court focused on the language of § 4A1.2(a) which limits the assignment of criminal history points to those offenses committed prior to age eighteen which "resulted in imposition of an adult or juvenile sentence..." The Court then reviewed the Pennsylvania statutes and determined that a juvenile court can adjudicate a child delinquent and then order the juvenile petition discontinued. The Government argued that the "discontinuance" is akin to a "suspended sentence" which counts under §4A1.2(a). The Court disagreed and, relying on Black’s Law Dictionary, noted that a suspended sentence occurs when the court sentences one "formally" but the sentence is not "actually served". The Court also dismissed each of the Government’s several alternative arguments: 1) that Langford’s "discontinued" sentence was intended to be concurrent to a previously imposed sentence on another case; 2) that the juvenile court had no reason to sentence Langford because it had already committed him on another case; and 3) that the juvenile court’s order for a DNA sample was sufficient to amount to a sentence.

After rejecting these arguments, the Third Circuit found that in light of the district court’s error, the Guidelines range was affected. Therefore, the Court found the proper guideline range should have been calculated with a category III, not a IV - which reduced the range from 46-57 months down to 37-46 months.

The Court then reviewed the effect of this error. Citing United States v. Gunter, 462 F.3d 237 (3d Cir. 2006), the Court first ruled that although advisory, the Guidelines play an "integral role" at sentencing and therefore the district court is required to calculate them properly. Therefore, a miscalculation of the Guidelines would result in the failure to discharge its duties under step one of Gunter. In addition, the proper Guidelines range is the "natural starting point from which the sentencing court exercises its discretion under § 3553(a) at Gunter’s third step." The Court also found support in the Supreme Court’s recent decision in Gall v. United States, 128 S.Ct. 586, 597 (2007), which found an improper Guidelines calculation a "serious procedural error" and Kimbrough v. United States, 128 S.Ct. 558, 564 (2007), which found that a "district judge must include the Guidelines range in the array of factors warranting consideration."
Not only did the Court find that the district court’s failure to properly calculate the Guidelines affected the three part sentencing process, but also that it "the failure to start with the correct Guidelines range is legal error that thwarts reasonableness review–that is, it cuts off [the Court of Appeals] review process before [the Court] even reach[es] the issue of reasonableness."

The Court then considered whether the improper calculation of the Guidelines was harmless error. Immediately, the Court stated that "the use of an erroneous Guidelines range will typically require reversal..." The Court noted, however, that in limited circumstances the error could be harmless. The Court, citing Williams v. United States, 503 U.S. 193, 203 (1992) stated, "we will remand for re-sentencing ‘unless [we] conclude on the record as a whole ... that the error did not affect the district court’s selection of that sentence imposed." It then rejected the Government’s position that harmless error applies when incorrect range and correct range overlap - the only remedy here for the sentence imposed as a result of incorrectly calculated Guidelines range is remand for re-sentencing.

While Judge Weiss agreed with the majority that a "discontinuance" is not a sentence under § 4A1.2, he dissented stating that the miscalculation in the Guidelines range did not make the sentence unreasonable. He proposed some new test - requiring significant procedural error. Specifically,"[t]he reasonableness of a sentence will not be vitiated by an "insignificant" error in the Guidelines calculation. The Guidelines computation should be performed carefully, but it is designed to produce a range – not a designated point. Consequently, the Guidelines calculation need not be as precise as an engineering drawing. There is enough play in the system to allow for harmless error."

Monday, March 03, 2008

Third Circuit reverses for insufficiency in gun possession case - no evidence of constructive possession or aiding and abetting

United States v. Cunningham, No. 06-3899 (3d Cir. February 21, 2008) - After a jury trial, Cunningham was convicted of three counts - 1) distribution of crack cocaine, 2) possession with intent to distribute more than 5 grams of crack cocaine and aiding abetting, and 3) a possession of a firearm in furtherance of a drug trafficking crime and aiding and abetting. On appeal, Cunningham challenged the sufficiency of the evidence with respect to the two possession convictions.

The gun and drugs that formed the basis for Cunningham’s conviction were found in a back-pack, which Cunningham never held or carried. Rather, the person who held or carried the back pack was Cunningham’s co-defendant. Therefore, the Third Circuit Court of Appeals focused its analysis on whether or not the evidence was sufficient to show that Cunningham constructively possessed the items or aided and abetted his co-defendant’s possession of them.

In an opinion drafted by Judge Fisher, the Court of Appeals affirmed as to the drug possession and reversed as to firearm possession. In making this decision, the Court applied two separate analyses based on two of the Court’s prior holdings (one for the gun and one for the drugs).

With respect to the gun possession, the Court determined that the analysis provided in United States v. Garth, 118 F.3d 99, 113 (3d Cir. 1999) controlled. With that said, the Court concluded that the evidence was insufficient to convict for constructive possession because there was no evidence that Cunningham "knew" about the gun. The evidence was also insufficient for aiding and abetting because Cunningham’s actions "did not show that he attempted to facilitate the carrying of the gun ... or that the gun was in any way instrumental to his decision to participate in the drug offense."

With respect to the drug possession, the Court determined that the analysis provided in United States v. Iafelice, 978 F.2d , 96 (3d Cir. 1992) controlled. Unlike gun possession, the Court found that Cunningham’s sales of identical drugs that morning to those found in the backpack in the afternoon, his speaking with his co-defendant repeatedly, going into his house, and their apparent efforts to safeguard the contraband were sufficient. Quoting Iafelice the Court stated, "there is a logical and convincing connection between the facts established and the conclusion inferred.