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Friday, September 28, 2012

Court articulates factors for egregious and widespread violations of Fourth Amendment and whether consent is voluntary

In Oliva-Ramos v. Attorney General of the U.S., --- F.3d ----, 2012 WL 4017478 (3d Cir. Sept 13, 2012), an appeal from an order of removal and denial of the petitioner’s motion to reopen the proceedings, the Third Circuit remanded for proceedings to determine whether a 4:30 a.m. ICE raid into an apartment, with five or six armed officers, violated the Fourth Amendment and similar regulatory provisions. The officers presented an administrative arrest warrant for one person at the apartment of her sister. The subject of the warrant was not home, but the officers, with questionable consent by the sister, entered the apartment, woke everyone inside, questioned them, blocked their exit, kept them sitting down, and eventually arrested anyone who could not document he was legally present in the United States. The arrestees were handcuffed, placed in a van, and driven to other locations, while agents conducted more raids and filled the van with more people. An immigration judge ordered Oliva-Ramos’ removal and the BIA affirmed. While on appeal to the BIA, Oliva-Ramos submitted additional documentation, obtained through a FOIA request by a law school clinic, to support his argument that the team that conducted the raid engaged in a consistent pattern of constitutional violations. Although, in the immigration context, the exclusionary rule is only applicable where constitutional violations are “egregious” or “widespread,” the Third Circuit collected useful guiding principles to analyze if a defendant can document a pattern of improper conduct, including whether there were intentional violations of the Fourth Amendment, the seizure was gross or unreasonable and without plausible legal ground (e.g., initial stop is unusually lengthy, unnecessary and menacing use of show of force), there was illegal entry of homes, arrests occurred under threats, coercion, or physical abuse, and any seizures or arrests were based on race or perceived ethnicity. The Court remanded for consideration of these factors. The Court also remanded for a better record of whether, under the totality of the circumstances, consent was voluntarily given. Factors to consider included: the setting, the parties' verbal and non-verbal actions, the number of officers and displays of force, the age, education, and intelligence of subject, whether the subject was advised of her constitutional rights, the length of the encounter, the repetition and duration of questioning, and the use of physical punishment.

Monday, September 24, 2012

When Considering a Request By the Government to Modify the Terms of Supervised Release, a Court May Not Impose Any New Terms That Would Create a Greater Deprivation of Liberty Than Necessary to Achieve The Sentencing Goals Established in 18 U.S.C. §3553(a).

     In United States v. Murray, Nos. 11-3196, 11-3197 (3d Cir. September 5, 2012), the Third Circuit considered the question of when it is appropriate for a district court to modify the conditions of supervised release.  District courts have the authority under 18 U.S.C. §3583(e)(2) to change the terms of supervised release after proper consideration of the factors listed in 18 U.S.C. §3553(a).  Federal Rule of Criminal Procedure §32.1(c) requires that a hearing be held before any change in supervision conditions.  Also, the defendant has a right to attend the hearing with his attorney and present mitigating arguments.  The Third Circuit held, in this case, that a district court may only grant a request to modify the terms of supervised release when the changes will not result in a greater deprivation of liberty than is necessary to achieve the purposes of sentencing set forth in §3553(a). When approving new terms and conditions, the district court must explain how the changes are consistent with the goals of sentencing.  The appellate court also reiterated the purpose of supervised release is to promote reintegration into society, not to further punish defendants. 

    Turning to the facts of this case, appellant Charles Murray pled guilty to one count of illicit sexual conduct with a minor (18 U.S.C. §2423(b)) in the District of New Jersey and one count of possession of child pornography (18 U.S.C. 2252(a)(4)(b)) before the Eastern District of Pennsylvania.  He served an aggregate term of 95 months in prison for these offenses and was also sentenced to two concurrent terms of three years of supervised release.  Both federal courts imposed special conditions of supervised release related to the nature of his offenses.

    When Mr. Murray was released from prison, he relocated to a town near Pittsburgh and supervision was transferred to the Probation Office in the Western District of Pennsylvania.  Probation sought to modify the terms of supervision to include additional requirements.  Mr. Murray opposed the modifications and additions, arguing that he had not violated any of the existing terms and that Probation had not provided any reason why the original conditions were not sufficient. In granting Probation’s request, the district court simply stated that it did not find any “meaningful difference” between the existing conditions and the modified terms.  The district court then granted the request making only a conclusory statement that the new conditions comported with §3553(a) and would be “positive” for Murray.  

    On review, the Third Circuit first found that appellant’s relocation to another federal district was a qualifying “changed circumstance,” giving the district court authority to review Probation’s request for a modification of the terms and conditions of supervised release.  But the Third Circuit remanded the case because the district court’s ruling was too vague and conclusory, failing to discuss and apply the §3553(a) factors.  The appellate court ordered the district court to clarify why the new conditions were not greater than necessary to achieve the §3553(a) sentencing goals, especially since there was no suggestion that the original terms were not sufficiently effective. The Third Circuit particularly expressed the need for restrictions on access to sexually oriented materials depicting adults to be narrowly tailored, in light of the First Amendment.

Sunday, September 23, 2012

Weapons suppressed: random male observed in a conversation being shown a gun did not give reasonable suspicion to detain him, and subsequent flight did not elevate encounter to probable cause to arrest.

In United States v. Navedo, No. 11-3413 (3d Cir. Sept. 12, 2012), http://www.ca3.uscourts.gov/opinarch/113413p.pdf, undercover officers were parked on a block in Newark, which was not found to be a high crime area, but in which there were two, recent unrelated incidents involving guns: two months before a shooting occurred, and one month before there was a domestic violence report of a man threatening a woman with a gun. The officers observed the defendant, whom they did not know, come out of a multi-unit building and stand on the porch. Two men approached, and the defendant walked down from the porch to speak with them. The conversation appeared ordinary and then one of the approaching men took from his backpack and showed to the defendant what appeared to be a gun. The officers approached and the men ran. The defendant ran into the building, up two flights of stairs, and attempted to enter his apartment. Officers tackled him in the doorway to the apartment and there were weapons in plain view. The Third Circuit reversed the District Court's denial of suppression. (McKee, J.) The Court reaffirmed that reasonable suspicion for a Terry search is specific to the person who is detained. Until the officers approached, the defendant had looked at the gun a third party showed him and also engaged in a brief conversation. Officers had no information that would support a reasonable suspicion the defendant was engaged in arms trafficking and knew of nothing to connect him to prior criminal activity. From these facts, the officers did not have reasonable suspiciion to detain and investigate. Unprovoked flight, without more, only elevates reasonable suspicion into probable cause to arrest if officers have reasonable suspicion. Judge Hardiman dissented, finding the record supported the District Court's finding that officers had reasonable suspicion to believe the defendant was about to engage in a gun transaction, and so, coupled with the defendant’s flight, which given the circumstances could be interpreted as evidence of a guilty conscience, gave the police probable cause to arrest.

Thursday, September 20, 2012

The Prohibition Against General Sentences Does Not Apply to Non-Guideline Sentences.

United States v. Martorano, No. 11-2864 (3d Cir. September 5, 2012)

    George Martorano was charged with nineteen counts in relation to the wholesale distribution of drugs, including conspiring to distribute drugs and supervising a Continuing Criminal Enterprise (CCE). He pled guilty to all nineteen counts.   In 1998, he was sentenced to life in prison. The district court did not issue a sentence for each individual count, but rather imposed a general sentence of life imprisonment. Notably, life imprisonment exceeded the statutory maximum on 18 of the 19 counts; only the CCE count allowed for a life term.

     Mr. Martorano filed numerous appeals and post-conviction motions over the years. In this appeal, Mr. Martorano argued that under the Third Circuit’s holding in United States v. Ward, 626 F.3d 179 (3d Cir. 2010), his general sentence was illegal. In Ward, the Court reversed the 25-year general sentence, which exceeded the statutory maximum on 3 of the 5 counts, because there was not enough information to determine whether the 25 year sentence applied to all 5 counts. The Third Circuit rejected Mr. Martorano’s argument.

     Initially, the Third Circuit noted that it has never held that general sentences are "illegal per se." The Court further explained that Ward was based on U.S.S.G. §5G1.2, which requires courts to impose a sentence on each count. Ultimately, the Third Circuit agreed with the district court that the holding in Ward does not apply to general sentences imposed outside of the Sentencing Guidelines. Since Mr. Martorano was sentenced before the Guidelines took effect, his sentence was not governed by §5G1.2 and the holding in Ward was not controlling. He was therefore not entitled to relief and the sentence was affirmed.

     Although the Third Circuit acknowledged that it had never held general sentences to be per se erroneous, it did reaffirm its position that general sentences are problematic and that in cases with multiple counts a detailed sentence for each count is greatly preferred.

     The appellate court also rejected Mr. Martorano’s second argument that the general sentence violated the Double Jeopardy clause by imposing separate concurrent sentences for the conspiracy to distribute drugs count and for supervising a CCE count. The Court ruled that even assuming that the conspiracy charge was a lesser included charge of the CCE count, Mr. Marorano could not be granted relief on this theory because the higher sentence for the CCE sentence was still within the district court’s discretion.

Wednesday, September 19, 2012

Crack reduction cases: Court upholds denial of proportional reductions below amended guideline range to account for variance in original sentence

In United States v. Berberena (Sept. 11, 2012), , the Court affirmed denials of sentence reductions below the amended Guideline range in two crack reduction cases. When Amendment 750 to the Sentencing Guidelines implemented the Fair Sentencing Act by reducing the crack-powder disparity, the defendants moved for sentence reductions under 18 U.S.C. § 3582(c)(2). Both defendants had received below Guideline sentences. In making Amendment 750 retroactive, the Sentencing Commission also adopted a new version of U.S.S.G. § 1B1.10, the policy statement governing “Reduction in Term of Imprisonment as a Result of Amended Guideline Range.” As amended, §1B1.10 provides that “the court shall not reduce the defendant’s term of imprisonment . . . to a term that is less than the minimum of the amended guideline range.” § 1B1.10(b)(2)(A) (Nov. 2011). The one exception is for defendants who provided substantial assistance to the government. § 1B1.10(b)(2)(B) (Nov. 2011). Before the 2011 amendments, the Guidelines permitted proportional reductions in sentence to account for departures of any kind, although they were discouraged when a below Guidelines sentence was based on a variance. § 1B1.10(b)(1)(B) (Nov. 2007). Here, neither defendant had cooperated and the District Courts denied sentence reductions below the amended Guideline range. The Third Circuit rejected the defendants’ three challenges to the binding policy statement in § 1B1.10. First, the Court found the Sentencing Commission had the statutory authority under the Sentencing Reform Act (SRA), 28 U.S.C. § 994, to limit the sentencing reductions in 3582 proceedings. Next, the Court found that the policy statement did not violate separation-of-power principles: it was not an impermissible delegation of legislative authority, nor did it infringe upon the exercise of judicial authority because the Commission was appropriately situated within the judiciary. Finally, the Court found that the Commission was not required to comply with the Administrative Procedure Act’s notice-and-comment requirements when issuing policy statements.