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Tuesday, April 28, 2009

District Court Has Authority to Categorically Reject Sentencing Guidelines' Cocaine Powder-to-Crack Ratio; United States v. Ricks Overruled

In United States v. Russell, No. 07-4731 (3d Cir. April 23, 2009), the defendant challenged his sentence for possession with intent to distribute more than 5 grams of crack cocaine. The district court imposed a sentence of 87 months, the bottom of a guideline range of 87 to 108 months, which resulted from a total offense level of 27 and a criminal history category of III. The district court denied Russell's request for a variance, pursuant to 18 U.S.C. § 3553(a), from the 70-to-1 ratio recommended by the guidelines for his base offense level. As an alternative, Russell had suggested a 25-to-1 ratio, which would result in a sentence of 60 months, the statutory mandatory minimum sentence.

At sentencing, the district court had relied upon the Third Circuit's decision in United States v. Ricks, 494 F.3d 394 (3d Cir. 2007), to conclude that it did not have the authority to reject the guidelines' crack-to-powder ratio, nor to fashion an alternative ratio of its own. Russell argued that, subsequent to his sentencing, the Supreme Court rendered two decisions which expressly held that the sentencing court may in fact categorically reject the guidelines' crack-powder differential. In Kimbrough v. United States, 128 S.Ct. 556 (2007), the High Court recognized that a district court is permitted to categorically reject and vary from the crack guidelines. Recently, in Spears v. United States, 129 S.Ct. 840 (2009), the Court ruled that a district court is also permitted to apply a different crack-powder ratio which it believes will correct the disparity.

The Third Circuit reviewed the sentence for both an abuse of discretion and plain error. The court concluded that the district court's ruling should be remanded under either standard of review.

Based upon Kimbrough and Spears, the Third Circuit determined its prior ruling in Ricks was no longer good law. By doing so, the court implicitly overruled United States v. Gunter, 527 F.2d 282 (3d Cir. 2008)("Gunter II"), which relied on Ricks. The court ultimately vacated Russell's sentence and remanded for resentencing so that the sentencing court could impose a sentence in light of its "clarified authority " under Kimbrough and Spears.

Tuesday, April 21, 2009

Supreme Court Limits Belton Searches

The Supreme Court issued an opinion today in Arizona v. Gant, 2009 WL 1045962 (April 21, 2009), holding that police may search a passenger compartment of a vehicle incident to a recent occupant's arrest only with reasonable belief that arrestee might access the vehicle at the time of the search or the vehicle contains evidence of the offense of arrest. The Court's decision places a limit on the Belton rule, allowing search of passenger compartments, to situations where the interests of officer safety or preservation of evidence (Chimel v. California) are present. In other words, if the defendant is secured in a patrol car already - no warrantless search!

Monday, April 20, 2009

Cert granted in Third Circuit case striking down criminal prohibition on depictions of animal cruelty

The Supreme Court this morning agreed to decide whether 18 U.S.C. 48, which makes it a crime to create, sell, or possess depictions of animal cruelty, is invalid under the Free Speech Clause of the First Amendment. The en banc Third Circuit had struck down the statute last summer by a vote of 10-3, in U.S. v. Stevens, No. 05-2497 (3d Cir. July 18, 2008). The case will be heard in the October 2009 Term.

Substantive Reasonableness Review Survives: Panel Reverses Below-Guidelines 6-Year Sentence in Child Porn Case as Greater than Necessary

Congratulations to Andrea Bergman and others at the FPD for the District of New Jersey! In United States v. Olhovsky, __ F.3d __, 2009 WL 1014482 (3d Cir. Apr. 16, 2009), a panel of the Third Circuit reversed a six-year sentence for a child porn offender as procedurally and substantively unreasonable, remanding for imposition of a LOWER sentence. The panel held that the district court erred in not granting a subpoena for Olhovsky’s treatment provider to testify, failed to consider mitigating evidence, and imposed a harsher than necessary sentence (even though the sentence was below-Guidelines).

Olhovsky was barely 18 at the time of his arrest, and had a very sad background, including severe birth defects, divorced parents, and a disabled mother. He was bullied and teased at school, and spent much of his time alone in his room with a computer. He was so depressed and suicidal that the was admitted to a psychiatric facility and had cut himself with a knife. He traded child pornography on a website that was infiltrated by the FBI, and was found to have over 600 images stored on his computer, including photographs of prepubescent children engaged in sex with adults. He had been viewing child pornography since he was 15. He admitted his involvement, waived indictment, and pleaded guilty.

During his pretrial release, he participated in mental health counseling and sex offender treatment through Pretrial Services. His treatment provider wrote a letter – the first of its kind he had ever written – extolling Olhovsky’s progress in treatment, explaining that his offense was motivated primarily by isolation and immaturity, and urging a non-prison sentence for Olhovsky’s protection and to prevent regression. Olhovsky’s attorney sought to call the treatment provider at sentencing, but Pretrial Services threatened that the provider’s contract would be canceled if he assisted the defense, unless he were subpoenaed. The district court refused to grant the subpoena, under the mistaken belief that the law did not authorize compelling the testimony of an expert and because live testimony was unnecessary since the provider had submitted the letter.

In imposing sentence, the district court emphasized the harm that trading child pornography inflicts. It expressed concern that Olhovsky could "turn around and become again a predator – a pedophile monster," despite the letter from the treatment provider and similar findings by other experts. As the Third Circuit said, "[i]t is not at all clear what (if any) basis the court had for making [that statement] . . . . In fact, the entire record is to the contrary."

The Subpoena. The Third Circuit found it "clear that the district court committed legal error in concluding that it could not subpoena [the treatment provider]." The error was not harmless, given the district court’s concerns about public safety and recidivism. "[W]e will not ignore," the Court said, "the potential force of a conversation with a treating psychologist specializing in the treatment of sex offenders who had been treating Olhovsky for almost two years."

Procedural Reasonableness. Because the district court failed to meaningfully consider all of the 3553(a) factors, the Court found the sentence procedurally unreasonable: "Here, it is not at all apparent that the court actually considered the lengthy, very specific and highly positive reports of any of the three defense experts . . . . [W]here, as here, the record strongly suggests that some of the statutorily prescribed sentencing factors were ignored, we cannot conclude that the resulting sentence was reasonable."

Substantive Reasonableness. The Court found that the district court "was so appalled by the offense that it lost sight of the offender." While it acknowledged that a prison sentence could be reasonable because trading child pornography is an extremely serious crime, six years was too much: "Given the factual and procedural error here, it was substantively unreasonable to sentence Olhovsky to six years imprisonment." The Court remanded for imposition of "a reasonable sentence based upon all of the § 3553(a) factors, including the ‘overarching’ principle of parsimony."

NOTE: This opinion was written by Judge McKee, who was in the majority in Tomko, but joined by Judge Rendell, who was in the dissent. (The third member of the panel was Judge Tashima, of the Ninth Circuit.)

PRACTICE TIP: Even if you have a less sympathetic defendant, consider seeking a below-Guidelines sentence on the basis that the Guidelines lack any empirical foundation. This argument is presented in great detail in a paper by AFPD Troy Stabenow, which is available on www.fd.org. Many courts around the country have granted variances based on the irrationality of the child porn guidelines alone.

Closely Divided En Banc Court Affirms “Gilded Cage” Sentence: Gall requires great deference to district court sentencing decisions

In United States v. Tomko, __ F.3d __, 2009 WL 1025876 (3d Cir. April 17, 2009) (en banc), the en banc Court (8-5) issued an important post-Gall opinion, reaffirming the principle that "[t]he fact that the appellate court might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court." Gall v. United States, __ U.S. __, 128 S. Ct. 586, 597 (2007). Judge Smith wrote the opinion affirming the district court’s sentence, and was joined in the majority by McKee, Barry, Ambro, Fuentes, Chagares, Hardiman, and Jordan.

The district court had sentenced Tomko, a first-time, white collar, tax fraud defendant to three years of probation (the first of which to be served in home detention), 250 hours of community service, and the statutory maximum fine of $250,000. The advisory Guidelines had called for a prison sentence of 12-18 months and a fine of $3000-30,000. When the case was first reviewed, the panel reversed the sentence, finding it procedurally unreasonable, because the district court did not adequately address the need for general deterrence, and substantively unreasonable, because instead of prison, the court sentenced Tomko to serve home detention in the mansion that was at the center of the tax fraud.

Noting that "[if] any one of a significant number of the members of this Court – including some in today’s majority – had been sitting as the District Judge, Tomko would have been sentenced to some time in prison," the en banc court nonetheless deferred to the sentencing judge, citing Gall’s reasoning that "the sentencing judge is in a superior position" to determine the appropriate sentence. Gall, 128 S. Ct. at 597. "It will be a rare case," the Court stated, "when it is clear that no acceptable reasoning can justify a given sentence. This is not one of them."

The record made clear that the district court had considered the government’s arguments that (1) crimes like Tomko’s deserved imprisonment; and (2) a non-prison sentence would send the message that wealthy offenders could buy their way out of prison. The record also contained support for the variance granted. Indeed, the Court found significant that the government had not disputed any of the facts cited by the district court in support of its sentence – Tomko’s status as a first-time offender, his philanthropic efforts, and the threat that his incarceration would pose to his 300 employees. The district court’s basing the sentence on these facts was "logical and consistent with the factors set forth in section 3553(a)."

The Court did not take the opportunity presented by the defense bar’s amicus brief to examine the irrationality of the Sentencing Guidelines’ treatment of white collar crimes. Nor did it address the question whether the Guidelines improperly limit the use of probationary sentences. The Court did emphasize, however, that the variance in Tomko’s case – twelve months – "was not substantial."

Five members of the en banc court, led by Judge Fisher, dissented (Rendell, Scirica, Sloviter & Cowen). The dissenters were concerned that the facts relied upon by the district court did not distinguish Tomko from other tax evaders. Congress and the Commission intended that "mine-run" fraud offenders like Tomko receive prison sentences. White-collar criminals had historically been underpunished, and both the Sentencing Reform Act and the Guidelines aimed to remedy that. It criticized the district court for granting a variance based on factors that were discouraged by both the SRA and the Guidelines. Gall, the dissent argued, approved a variance under very special circumstances – a youthful conspirator who had withdrawn from his life of crime and become a responsible adult. Other co-conspirators had been punished harshly enough that deterrence was not compromised by the variance in Gall, the way it would be here. The dissent also declined to address the defense bar’s amicus arguments.

PRACTICE TIP: A copy of the amicus brief attacking the white collar crime Guidelines and defending probationary sentences as consistent with the SRA and § 3553(a) is available at http://www.fd.org./

Tuesday, April 07, 2009

Third Circuit precludes § 3582(c) sentence reduction where sentence is stipulated in Rule 11 binding plea agreement.

In United States v. Sanchez, No. 08-1847 (3d Cir. April 3, 2009), a panel majority affirmed the District Court’s denial of Sanchez’s motion to reduce his sentence under 18 U.S.C. § 3582(c). Although the District Court's denial was based on determining that the offense of conviction carried a mandatory minimum sentence, the Court of Appeals affirmed the denial on an alternative ground that the District Court did not address: that Sanchez's sentence was the result of a Rule 11 binding plea agreement. Circuit Judge Roth dissented, reasoning that a defendant who agrees to a stipulated sentence in a binding plea agreement should – like a defendant sentenced after a jury verdict – be eligible for a sentence reduction.
Sanchez went to trial on a seven-count indictment alleging drug trafficking and firearm possession charges. During trial, Sanchez and the Government entered into an oral binding plea agreement in which Sanchez agreed to plead guilty to one count of criminal conspiracy to distribute drugs, under 21 U.S.C. § 846. In the change of plea hearing, counsel represented that this plea agreement included three key stipulations: (1) that the quantity of drugs was "between 35 and 50 grams of crack cocaine"; (2) that Sanchez had no prior criminal record, and that no "enhancements . . . would apply to this particular sentence"; and (3) that the sentence would be 120 months.
Under the then-applicable 2001 edition of the Sentencing Guidelines manual, the stipulated drug quantity of "at least 35 grams but less than 50 grams of cocaine base" led to a base offense level of 30; with the agreed criminal history category I, Sanchez’s Guidelines sentencing range would have been 97-121 months – encompassing the stipulated sentence of 120 months. But despite the plea agreement’s stipulation as to drug weight, the Probation Office found a drug weight of 50 or more grams of crack cocaine, which led the Probation Office to conclude: (1) the Guidelines sentencing range was 121-151 months; and (2) 21 U.S.C. § 846, for that drug weight, carried a mandatory minimum sentence of 120 months.
At sentencing, the District Court accepted the Probation Office’s factual findings and Guidelines calculations. Based on counsels’ oral representations of the terms of the binding plea agreement, the District Court accepted the oral plea agreement as binding under Rule 11, and imposed the stipulated prison sentence of 120 months.
Then, in 2008 – after the Sentencing Commission retroactively amended U.S.S.G. § 2D1.1 to reduce the base offense levels for crack cocaine offenses by two offense levels – Sanchez filed a motion for sentence reduction under 18 U.S.C. § 3582(c). The District Court denied the motion on the ground that because Sanchez’s conviction was for distributing 50 grams or more of cocaine, which carried a mandatory minimum sentence of 120 months, he was not eligible for sentence reduction under §3582(c).
On appeal, the Court of Appeals applied the de novo standard of review to the District Court’s ruling that it lacked authority to reduce Sanchez’s sentence.
The Court of Appeals considered, first, Sanchez’s argument that the District Court erred because Sanchez’s conviction did not carry a mandatory minimum sentence, since the plea agreement stipulated drug weight as under 50 grams. The Court of Appeals acknowledged that Sanchez’s argument had "some logical force" and factual support in the record, noting specifically that the Government’s brief had conceded that it was "unclear . . . whether Sanchez was subject to a [ten]-year mandatory minimum sentence . . . ." But the Court chose not to rule on this argument, instead affirming the District Court’s denial on an alternative ground.
Citing decisions in the Sixth, Seventh, and Tenth Circuits – and explicitly noting a Fourth Circuit decision to the contrary, United States v. Dews, 551 F.3d 204 (4th Cir. 2008) – the Court of Appeals ruled that the 120-month stipulated sentence precluded relief under § 3582(c). Circuit Judge Jordan’s opinion considered but rejected Sanchez’s argument that the stipulated sentence was "based on" the Sentencing Guidelines for purposes of a § 3582(c) motion, as the parties agreed to – and the District Court accepted – the 120-month sentence specifically because it fell within the properly calculated Guidelines range. In a concurrence, Circuit Judge Rendell opined that considering whether the stipulated sentence was "based on" the Guidelines was unnecessary: "[t]he agreement is the agreement, binding on the District Court without exception applicable here."
Circuit Judge Roth dissented, observing that the majority’s decision permitted the logical inconsistency of allowing resentencing under § 3582(c) for criminal defendants who go to trial and are convicted by a binding jury verdict, but not those who save judicial and governmental resources by entering into a binding plea agreement. Judge Roth, finding the Fourth Circuit’s decision in Dews persuasive, would permit defendants sentenced under binding plea agreements to move for resentencing based on a Guidelines change, as a binding plea agreement "does not necessarily include the waiver of a defendant’s right to seek resentencing . . . . if at some point in the future the Guideline on which his sentence is based changes. Such a waiver must be specifically bargained for, just like the waiver of a defendant’s right of appeal . . . ."
According to Judge Roth, eligibility for § 3582(c) relief is especially compelling if the Guidelines change would – as here – "affect the basic elements that led up to the final plea agreed upon." Judge Roth credited Sanchez’s argument that, based on a fair reading of the record, "it strains credulity to imagine that [Sanchez’s] plea was not based on the Guidelines." Judge Roth noted that when a defendant considers pleading guilty, "the sentencing consequences, including the impact of the Sentencing Guidelines, are a crucial element in reaching the bargain," and that "[i]t requires only the smallest inference to determine [that the] . . . Guidelines sentence range provided the boundaries of what would be acceptable to both the Government and Sanchez, resulting in their selection of 120 months in their plea agreement."

Monday, April 06, 2009

SCOTUS reverses Third Circuit, reinstating mandatory McNabb-Mallory rule

In a 5-4 decision released today, the Supreme Court reaffirmed the McNabb-Mallory rule by holding that confessions taken more than six hours after a federal arrest, but before the defendant is presented to a magistrate judge, must generally be suppressed -- even if they are voluntarily given. The Third Circuit, somewhat reluctantly following its prior precedent on the issue, had held that McNabb-Mallory was abrogated by a federal statute (18 U.S.C. 3501) that makes voluntariness the sole criterion for the admissibility of a confession. Today's decision in Corley v. United States, No. 07-10441 (U.S. Apr. 6, 2009), reverses that judgment.

The Court ruled that Section 3501 merely modifies McNabb-Mallory by carving the first six hours after arrest from its ambit. Within six hours of arrest, voluntary confessions are admissible in federal court subject to the standard rules of evidence. Pre-presentment confessions taken more than six hours after arrest (or such reasonably longer time as may be necessitated by the logistics of transportation to the magistrate) must be suppressed unless the delay was "necessary" under the McNabb-Mallory case law. "Necessary" delays include such things as the unavailability of a magistrate, but not -- importantly -- delays for purposes of questioning the defendant or investigating crime.

The Court's decision today changes the law in most of the federal circuits, including the Third, in two important ways. First, it reaffirms that McNabb-Mallory is fully in effect beyond six hours of a federal arrest. Second, it clarifies that suppression under McNabb-Mallory is mandatory in cases of unnecessary delay -- most courts that had continued to apply McNabb-Mallory after the enactment of Section 3501 had held that suppression was ultimately at the discretion of the district court.

Historical perspective on McNabb-Mallory is provided here by Lyle Denniston at SCOTUSblog.