Third Circuit reaffirms that sentencing courts must only give deference to Sentencing Commission's interpretation of genuinely ambiguous Guidelines' provisions

In United States v. Malik Nasir, Appeal No. 18-2888, the Third Circuit finally resolved defendant Malik Nasir's appeal after review before a merits panel in November 2019, En Banc review in June 2020, and remand from the United States Supreme Court in November 2021. 

On a tip, Malik Nasir was arrested near a storage unit in which he kept the marijuana he was selling. He was subsequently charged with, and convicted of, two drug offenses and a firearm offense. At sentencing, the District Court applied a career offender enhancement found in the United States Sentencing Guidelines. Nasir appealed his convictions and challenged the application of that enhancement. The Third Circuit rejected the challenge to his convictions and reiterated that the sentencing enhancement was not properly applied.The Court, therefore, affirmed Nasir's convictions, vacated his sentence, and remanded for resentencing.

(1) Sufficiency of the evidence: The Third Circuit found that the evidence was sufficient to convict Nasir of violating crack house statute for his use of storage unit, despite contention that provision under which defendant was convicted did not apply to defendant's storage of marijuana; even if provision did not apply to storage, jury was presented with more than ample evidence that defendant was distributing marijuana from rented place, including evidence that unit contained distribution paraphernalia like scales and packaging materials, and facility owner's testimony about defendant's frequent and suspicious trips to unit. 

(2) Probable cause: Police had probable cause to arrest Nasir and search his vehicle as a search incident to arrest, despite contention that police failed to corroborate tip from storage facility owner regarding Nasir's activities, where arresting officers knew Nasir had history of drug dealing, owner reported that Nasir engaged in suspicious activity in making numerous trips to storage unit and took picture of unit that showed items consistent with drug distribution, and narcotics dog had positively alerted to drugs at unit.

(3) Motion to strike juror:  District court did not manifestly err in denying Nasir's motion to strike juror who expressed concern about her partiality to police officers, where court emphasized juror's obligation to be fair and impartial and to weigh evidence equally, juror responded with assurances that she would follow court's instructions, and juror said that she “would think” and “would hope” that she could be impartial.

(4) EN BANC: No deference owed to Sentencing Commission's interpretation of career offender guideline where guideline provision was not ambiguous: Nasir was subjected to the career offender enhancement as a result of a prior conviction for attempt to possess with the intent to distribute cocaine. He argued that the the definition of "controlled substance offense" in U.S.S.G. §4B1.2(b) did not include inchoate offenses. Inchoate offenses appear, however, in the commentary to §4B1.2. The Third Circuit, en banc, ruled that the plain language of the guideline, rather than the more expansive commentary interpreting the guideline, should be given controlling weight. In so holding, the Court noted that, while deference is generally owed to an agency's interpretation of its own ambiguous rule unless the interpretation is plainly erroneous or inconsistent with the regulation, the rule the agency is interpreting must be genuinely ambiguous and the agency's interpretation of the ambiguous rule must reflect fair and considered judgment. Applying canons of statutory construction, the Court found that §4B1.2(b)'s definition of controlled substance offense was not ambiguous and, therefore, the plain text reading of the definition, which does not include inchoate offenses, controlled. Therefore, sitting en banc, the Court determined Nasir was entitled to be resentenced without being classified as a career offender.

When evaluating a motion for early termination of supervised release, a district court may not impute a probation officer's improper actions to the defendant

 In United States v. Sheppard, Appeal No. 20-3088 (Nov. 3, 2021), defendant moved for early termination of supervised release based on allegations that his probation officer developed a personal and intimate relationship with defendant's long-term, live-in girlfriend. The defendant contended that his probation officer's egregious and offensive conduct had a detrimental effect on his rehabilitation and warranted early termination. The district court denied the defendant's motion, finding that the defendant needed continued supervision and the probation officer's misconduct had little to do with whether the defendant should continue supervision with a different probation officer. 

The Third Circuit affirmed the district court's discretionary denial of early termination on appeal, but stressed that "when evaluating a motion for early termination, a district court, particularly in the absence of holding an evidentiary hearing, may not impute a probation officer’s alleged improper actions to a defendant serving a term of supervised release, so as to justify continued (or additional) rehabilitative oversight." Indeed, "imputing a probation officer’s misconduct to a defendant places the defendant in a vulnerable position – not just in terms of seeking relief for the probation officer’s misconduct, but also as to the defendant’s welfare and ability to integrate into the community." Thus, while the district court did not err in denying the defendant's motion, it should not have considered the possible effects of the probation officer's misconduct on the defendant's rehabilitation.

Court Grants Judgment of Acquittal for Failure to Prove Materiality of Defendant's Fraudulently Filing Document in Cosby Civil Suit

 In United States v. Joseph R. Johnson, No. 20-1449, 2021 WL 5492600 (Nov. 23, 2021), Judge Matey writes for a panel that also includes Judges Smith and Fisher to grant plain error relief for failure to prove materiality.  This statutory construction direct appeal could have broader applications in other contexts involving materiality. Thanks to Claudia Van Wyk, Assistant Federal Defender, Eastern District of Pennsylvania, for this summary! 

The attorney for one of the plaintiffs who sued Bill Cosby filed a praecipe with the district court to file an attachment that had been omitted from a previous motion.  Joseph Johnson, a Bill Cosby supporter, was convicted of making materially false, fraudulent and fictitious statements and representations, 18 USC sec. 1001, for subsequently hand-filing a document which purported to be the same praecipe, but which attached various documents and emails critical of the plaintiff in the lawsuit.  His deception was discovered and the FBI located and charged him.  Judge Matey summarizes the Circuit panel’s holding:

 Joseph Johnson developed an unusual fascination with the allegations of sexual assault against entertainer Bill Cosby. Hoping to cast doubt on the accusers, Johnson posed as an attorney and filed a fabricated document on the civil docket of one of the lawsuits against Cosby. His trick was quickly discovered, and the Government brought criminal charges against Johnson for making a false statement and identity theft, leading to a conviction after a jury trial. Johnson now appeals, arguing that the Government failed to prove that his statements were material.

 We agree. Johnson's behavior wasted public time and resources and distracted court officials from their work. But only Congress enjoys the authority to turn conduct into a federal crime. And while the Government presented plenty showing that Johnson's statements were false, it offered no evidence and elicited no testimony from the only individual it proposed as the government decisionmaker—the judge in the underlying litigation—to explain how the filing could influence a judicial decision. Because that evidence was necessary for the Government to establish liability under 18 U.S.C. § 1001, we will reverse Johnson's convictions and remand for entry of a judgment of acquittal.

 Judge Matey employs the following reasoning: 

1. Johnson did not preserve the sufficiency challenge he brings in the Circuit because his general Rule 29 motion during trial and his post-trial motion for acquittal focused on the lack of evidence that he “caused” the false statement to be filed and did not mention materiality.
2. Johnson is entitled to plain error review under the 4-part framework of US v. Olano.  Because insufficient evidence requires reversal when upholding the conviction would result in a fundamental miscarriage of justice, that standard is satisfied.
3. The government did not prove materiality, which requires that the false statement have “a natural tendency to influence or be capable of influencing the decision of the decision making body to which it was addressed.”  While the agency need not necessarily actually rely on the false statement, it has to be of a type capable of influencing a reasonable decisionmaker.  Here, the judge who dismissed Johnson’s false praecipe testified that he generally relies on the docket in all his rulings.  The document was not even relevant to the proceedings here and the judge’s only act in relation to the document was to strike it from the docket.  That is not materiality, Matey rules.  The judge’s testimony about his general reliance on his docket established only relevance, not materiality.  Those are two different things.  And the fact that the praecipe was stricken is evidence it was false but not that it was material.  Matey rejects a new theory of relevance offered by the Government—that the statement was material because it caused the  clerk to file the document in the first place.  This theory was not considered by the jury and was unsupported by the record.
4. The government’s failure to prove an essential element of an offense is generally a miscarriage of justice, and it is a miscarriage here. 

 The panel remands for the entry of a judgment of acquittal.

Court Affirms in Hard-Fought Appeal of Conviction in School Fraud Case

 In United States v. Shulick, Nos. 18-3305 & 19-1011 (Nov. 15, 2021), the Court affirmed Shulick’s convictions and sentences for conspiracy to embezzle, embezzling, wire fraud, bank fraud, false statements, and filing false tax returns, in connection with a for-profit business that provided alternative education to at-risk students in the School District of Philadelphia. He was sentenced to a total of 60 months’ imprisonment and three years’ supervised release, plus two $20,000 fines and restitution of $759,735 to the School District and $5,000 to PNC Bank.

Shulick alleged a speedy trial violation because the district court continued the case following the government’s late production of discovery for the stated reason of “case complexity,” when the actual reason was the government’s lack of diligent preparation. The Court distinguished Shulick’s claim from the case he relied on, United States v. Crane, 776 F.2d 600, 606 (6th Cir. 1985), in which the district court admitted to an inappropriate motive. Here, the case was indisputably complex, as evidenced by Shulick’s own requests for continuances to “wade through discovery materials,” which numbered in the millions of pages and derived from a multi-year investigation. The Court rejected Shulick’s request for a categorical rule that government discovery violations require dismissal, leaving any remedy to the district court’s discretion. And it found that Shulick failed to demonstrate here a “lack of diligent preparation,” where the government made a “one-time administrative mishap” which it “promptly admitted.” In evaluating Shulick’s request for Sixth Amendment relief, the Court found no prejudice, where trial was conducted within 18 months and Shulick did not demonstrate a lost witness had helpful testimony, nor why his attorneys failed to preserve it. The Court noted that the speedy trial guarantee does not apply to pre-indictment delay (here, Shulick alleged two years of preindictment delay).

The Court also reviewed several evidentiary rulings, relating to “agency” under 18 U.S.C. §666. Those litigating such cases will wish to review this aspect of the opinion more closely. For the rest, the opinion highlights both the importance of objecting in the trial court and the difficulty of the abuse of discretion standard on appeal. The Court also upheld the exclusion of expert testimony, because of the insufficiency of Federal Rule of Criminal Procedure 16(b)(1)(C) disclosure, holding that a “written summary” of expert testimony is more than a curriculum vitae and a short description of possible testimony. The Court held that describing an expert as a “summary” witness does not relieve counsel of the obligation to disclose opinions, bases, and reasons.

Finally, as to the convictions, the Court addressed instructional issues. Shulick raised two instructional concerns. First, he argued it is error to instruct that an intentional misapplication within the meaning of § 666(a)(1)(A) can be found even if the misuse of funds still benefited the victim. The Court disagreed, based on a careful reading of the statute’s terms, in which the disjunctive “or” suggests that an intentional misapplication of funds is a separate way of satisfying the statute, apart from the earlier prohibition on conversion which is subject to the limiting phrase about benefit to the victim. If not, the Court held, any error was harmless, because Shulick actually embezzled contract funds and used them for his own benefit. Second, Shulick argued it was error to refuse him a safe harbor instruction under § 666(c), which excludes from criminal liability salary, wages, fees, compensation, or expenses “paid or reimbursed, in the usual course of business.” The Court held that such an instruction was not supported by the evidence.

As to the sentence, the Court held that the loss amount was properly calculated under United States v. Nagle, 803 F.3d 167, 180 (3d Cir. 2015), and that Shulick failed to show he was entitled to specific offsets under United States v. Jimenez, 513 F.3d 62, 86 (3d Cir. 2008). For the same reasons, his restitution challenges failed. The Court held that it was not an abuse of discretion for the district court to supplement the sentencing record with a defense expert’s binder of materials. The Court accepted the district court’s view that the binder was material, having been relied on by the defense expert and referenced on cross-examination.

A defendant cannot directly petition a court for compassionate release based on substantial assistance to bypass Rule 35(b)’s requirement that the government file a motion for sentence reduction exclusively on this ground

18 U.S.C. § 3582(c) provides various routes for a District Court to reduce a defendant’s sentence after sentencing. Subsection (c)(1)(A) permits courts, as modified by the First Step Act, to directly receive a defendant’s motion for compassionate release 30 days after he has requested such relief from his warden. This subsection requires consideration of the 3553(a) factors and a finding that “extraordinary and compelling reasons warrant such a reduction.”

Subsection (c)(1)(B) permits a sentence modification if “expressly permitted by statute or by Rule 35 of the Federal Rules of Criminal Procedure.” Rule 35(b) only permits sentence reduction one year after sentencing based on a defendant’s substantial assistance upon the government's motion. 

In United States v. Claude, https://www2.ca3.uscourts.gov/opinarch/203563p.pdf, the Third Circuit held that a defendant may not use the compassionate release process to bypass Rule 35(b)’s requirement that the government bring a motion for sentence reduction based on a defendant’s post-sentencing substantial assistance in investigating or prosecuting another person. While a defendant cannot satisfy the “extraordinary and compelling reasons” standard for compassionate release based on his unilateral evaluation of his assistance, a District Court may consider such assistance in its compassionate release analysis. It can be “a relevant factor” just not serve as the only basis to establish extraordinary and compelling reasons.

Assault by a prisoner by “caus[ing] another to come into contact with [bodily] fluid” when the prisoner knew or should have known the fluid came from someone with a communicable disease," as prohibited by 18 Pa. Cons. Stat. § 2703, is not a crime of violence under the career offender guidelines

 Under the career offender guidelines, a crime of violence is defined as the “use, attempted use, or threatened use of physical force.” U.S.S.G. § 4B1.1(a)(1). The “use of physical force” involves the “intentional employment of something capable of causing physical pain or injury to another person, regardless of whether the perpetrator struck the victim’s body.” The qualifying physical force may be direct or indirect so long as it is “strong enough to constitute power,” and more than the “slightest offensive touching.” See United States v. Chapman, 866 F.3d 129 (3d Cir. 2017).

 In United States v. Quinnones, https://www2.ca3.uscourts.gov/opinarch/202709p.pdf, the Court determined that the least culpable form of assault by a prisoner under 18 Pa. Cons. Stat. § 2703 was not a crime of violence. In analyzing § 2703, the Court used the modified categorical approach because “certain elements of the statute fit within the definition of a crime of violence, while other alternative elements d[id] not.” United States v. Jones, 740 F.3d 127, 134 (3d Cir. 2014). The parties agreed that Quinnones was convicted of the statutory section of “caus[ing] another to come into contact with [bodily] fluid” when the prisoner knew or should have known the fluid came from someone with a communicable disease. The Court then decided that “spitting or expelling fluid in their least culpable forms do not involve force for the purpose of § 4B1.2 because such acts are not capable of causing physical pain or injury.”

 This spitting a communicable disease offense is also not a crime of violence because it can be committed with recklessness or negligence. Section 2703 has two state of mind components. To violate § 2703, the actus reus must be performed knowingly or intentionally, a defendant must knowingly or intentionally cause another to come into contact with a fluid by engaging in certain specified acts, such as spitting. But the defendant only needs to have known or should have known that the bodily fluid came from someone with a communicable disease. “Should have known” embodies the standard for negligence and cannot be a crime of violence. See Leocal v. Ashcroft, 543 U.S. 1, 9, 13 (2004).

 

Spatial proximity of firearm to drugs is not necessary for enhancement under U.S.S.G. § 2D1.1(b)(1)

            Section 2D1.1(b)(1) provides for a Guidelines enhancement when “a dangerous weapon (including a firearm) was possessed.” Application note 11 further provides: “The enhancement should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense.”

            In U.S. v. Denmark, 20-2267, 2021 WL 4127257 (3d Cir. Sept. 10, 2021), the Court held that physical proximity between drugs (or paraphernalia) and guns is only one of the four factors to consider in making the “clearly improbable” determination. 

              Here, the defendant acted as a middle man in arranging meth deals by video calls (from home), and by delivering meth packages to the post office.  Law enforcement recovered firearms and paraphernalia, but no drugs from his home.  The guns and paraphernalia were in different rooms on different floors.  At sentencing, the defense objected to the firearm enhancement, arguing that the firearms could not have been connected with the offense because the meth had never been at the residence.  He argued that for the enhancement to apply, the guns needed to be present at the crime of transporting the meth to the post office.

           The Court reviewed the “mechanics” of applying the enhancement as set forth in United States v. Napolitan, 762 F.3d 297 (3d Cir. 2014).  The government must first prove, by a preponderance of the evidence, only that the defendant possessed the weapon. The burden then shifts to the defendant to “demonstrate that the connection between the weapon and the drug offense was clearly improbable,” with no burden on the Government to prove a relationship between the weapons and the drugs.  Rather, the “general rule” is that the enhancement should be applied if a firearm was present.  

          In determining whether it is clearly improbable that a weapon was connected with a drug offense, the Court looks to four factors, only one of which is proximity: “(1) the type of gun involved, with clear improbability less likely with handguns than with hunting rifles, (2) whether the gun was loaded, (3) whether [it] was stored near the drugs or drug paraphernalia, and (4) [ ] whether [it] was accessible.”

          Although the district court failed to make express findings on whether defendant met the clear improbability standard, the Court found nothing in the record to dispel the presumption of a connection.  In the house were two handguns, a semi-automatic assault rifle, and a shotgun.  One handgun and several magazines were loaded.  Although there were no drugs in the house, law enforcement observed Denmark make a drug deal over FaceTime from his home.  Finally, the firearms were sufficiently accessible.  Because none of the four factors weighed in favor of the defense, application of the enhancement was affirmed.

(Case reviewed and post written by Christy Martin)

Hobbs Act robbery is not a “crime of violence” under the Sentencing Guidelines

Hobbs Act robbery is not a “crime of violence” under the Sentencing Guidelines. So holds the Third Circuit in United States v. Scott, No. 20-1514, 2021 WL 4302516 (3d Cir. Sept. 22, 2021). Under Scott, Hobbs Act robbery is not a predicate for the career offender guideline, § 4B1.2(a), or its cross-referenced provisions, including the firearm guideline, § 2K2.1(a).

As Court-watchers will observe, Scott is far from breaking news. The opinion makes precedential a holding reached over two years ago in a not precedential opinion of a Third Circuit panel. Six other Courts of Appeals have held the same.

Scott should apply to the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B)(i).

The outcome, however, is different under 18 U.S.C. § 924(c)(3)(A), which defines “crime of violence” slightly differently.  (Section 924(c) refers to force against “person or property”). Under § 924(c), Hobbs Act robbery is a crime of violence.  See United States v. Walker, 990 F.3d 316, 326 (3d Cir. 2021).

Walker notwithstanding, defendants should preserve an objection to Hobbs Act robbery as a § 924(c) predicate. This area of law remains unsettled pending a decision by the Supreme Court in United States v. Taylor (# 20-1459)—a case raising the question whether attempted Hobbs Act robbery is a crime of violence under § 924(c). The Supreme Court will hear argument in Taylor on December 7, 2021.

Finally, a note to appellate wonks: Scott granted relief on plain error review. Most importantly, the majority found that the Guidelines error was “plain” under prong two of the plain error test. Judge Phipps, dissenting, would have denied relief on prong two.

Limited waiver of Miranda rights invalidated when a defendant raised the subject he initially stated he did not want to discuss during his interrogation

 

U.S. v. James Eugene Rought, ___F.3d ___, No. 20-2667 (3d Cir. 8/24/2021

 

This opinion does not answer defense attorneys’ eternal question, “Why can’t they just shut up?” but gives the unsurprising answer when they don’t. 

 

The defendant twice sold fentanyl to a Mr. Carichner; a transaction witnessed by a Ms. Giberson. A few days later Giberson asked Carichner to get her fentanyl from the defendant. He defendant sold it to him and the two imbibed together. Later. Carichner gave some of the fentanyl to Giberson. Later that night, Giberson overdosed but was revived with Narcan. Carichner overdosed later that evening and died. 

 

Police connected the defendant to the crimes, and he was indicted for distributing and possessing fentanyl with intent to distribute resulting in serious bodily injury and death. Before his initial appearance the FBI spoke to him. The defendant signed a Miranda waiver but after freely answering questions for several minutes orally stated he did not want to speak about Carichner’s death. The agents moved to different topics, but the defendant on his own brought up Carichner’s death by saying the agents were trying to pin it on him. The agents used that opening to go into Carichner’s death and obtain incriminating statements. 

 

The defendant’s motion to suppress the statements about Carichner was denied and a jury convicted him of the death and other crimes charges in a superseding indictment.

 

On appeal the defendant first maintained that all questioning should have ceased when the defendant said he did not want to talk about Carichner. The panel rejected that contention, describing a line of cases that allow a limited waiver of Miranda rights. The defendant however only made a “limited invocation” of his right to remain silent, and the agents honored up to the point he brought up Carichner by accusing the agents of setting him up for the death.  

 

The panel also rejected the defendant’s contention that he did not bring up Carichner’s death. Accusing the agents of trying to place blame for the murder for him was enough to allow the agents to discuss the matter. The accusation occurred during a conversation between the defendant and the agents on the poor state of Wilkes-Barre due to the drug trade. That initiated a discussion about how drugs and drug dealers were haring the community subject the defendant had previously asked be excluded from the interrogation, and the agents were free to pursue the subject. The panel acknowledged an appeal to the defendant’s conscience might elicit a response about Carichner’s death, but it refused to impute such motivation or foreknowledge to the agent who made the comment.  

 

Finally, the panel peremptorily rejected the defendants’ contention that the waiver was invalid because he did not see all the potential consequences. A defendant does not have to know every possible consequence of a waiver of his right to remain silent. 

 

In short, a defendant can make a limited waiver of Miranda rights, but if in conversation with law enforcement he in any way raises the topic he wanted to avoid, he voids his waiver, and law enforcement can continue to question him unless he reinvokes his right to remain silent. 

 

Judge Roth dissented, being of the view that the agents tricked the defendant into invalidating his limited invocation of Miranda rights.  

 

 

 

Miller does not preclude sentencing juvenile offender to de facto life in prison without parole, even if he is not "incorrigible."

The en banc decision in United States v. Grant, No. 3820, https://www2.ca3.uscourts.gov/opinarch/163820pen.pdf, -- F.4th ----2021 WL 3611764 (Aug. 16, 2021), considers whether, under Miller v. Alabama, a juvenile offender may be sentenced to de facto life without parole, even when all concede he is not incorrigible. Those practicing in this or related areas will want to give Grant a close read, but we summarize the issues here. For appellate practitioners, note the discussion of preservation and plain error related to the sentencing package doctrine—all issues seen in more ordinary cases.

Despite the multiple opinions here, the Court unanimously affirms Grant’s sentence under Miller. The majority holds that Miller guarantees only a “sentencing process” under which the sentencer has discretion to impose a lesser punishment based on the offender’s youth at the time of the offense. Since Grant received that process, the Court affirms his newly imposed 65-year sentence, even though it incarcerates him to his life expectancy. To reach this conclusion, the Court contrasts the Miller opinion with the categorical bars in Roper and Graham and the Supreme Court’s recent decision in Jones v. Mississippi, which—like Miller—emphasized “discretionary sentencing procedure.” The Court observes that the sweeping language of Montgomery v. Alabama, which made Miller retroactive to cases on collateral review, did not expand Miller’s holding.

The Court notes, citing Jones, that although there is no guaranteed outcome for juvenile homicide offenders. “If a sentencer imposes de jure or de facto LWOP after finding—gratuitously—that a defendant is corrigible, the vehicle for challenging the sentence is an as-applied Eighth Amendment claim, based on disproportionality of the punishment to the crime and criminal.” Grant had not pursued such a challenge. Grant’s complaint that the sentencing judge failed adequately to explain the de facto life sentence vis-à-vis Miller was dismissed by the Court, since the sentencing judge considered Grant’s youth and related factors in mitigation. The Court emphasized that no specific script is required and that consideration may be brief.

The Court found that Grant failed to preserve a sentencing package doctrine argument to vacate and reconsider concurrent sentences (the district court had resentenced Grant only on the two RICO counts involving the homicides). Counsel missed the mark by pitching this as required by “the spirit of Miller,” instead of the sentencing package doctrine. To preserve an argument, counsel must have raised the same argument, not merely an issue that encompasses the appellate argument. On plain error review, the Court held that the law did not clearly require de novo sentencing when certain sentences (as opposed to convictions) are vacated.

Judge Hardiman (joined by Jordan, Bibas, and Porter) writes a concurrence discussing the problems with the Eighth Amendment “evolving standards of decency” test applied in Miller, which he believes displaces the text of the Bill of Rights in favor of a “nebulous test” that gives judges unbounded discretion.

Judge Greenaway (joined by Restrepo) writes a concurrence arguing that Jones is not helpful in this case because it doesn’t resolve what happens when—as happened here—a judge makes an affirmative finding that an offender is “corrigible.” He explains how Miller, Graham and Montgomery require evaluation whether an offender has a “meaningful opportunity to obtain release” and what that entails. (Judge Krause joins for this part only.) He concludes the evidence presented at Grant’s sentencing established a meaningful opportunity to obtain release.

Judge Ambro (joined by Mckee) concurs in part and dissents in part. Judge Ambro believes that Jones overruled Miller and Montgomery as to the guarantee of meaningful opportunity for release. He dissents (and Restrepo joins him and McKee for this section) on the sentencing package issue. He finds the issue preserved by counsel’s statement that the sentences were “all part and parcel of one sentence” and that “it should be clear that really it is a whole knew sentencing,” which alerted the sentencing judge to the substance of the sentencing packaging doctrine argument. The sentencing judge appeared to understand the argument, as well. He finds no reason to distinguish between convictions and sentences under the doctrine. Because it is unclear whether Grant got a full resentencing, he would have remanded.

Rebuttable presumption that firearm is used or possessed “in connection with” a drug-trafficking offense if the firearm is found in close proximity to drugs or related items, justifying a four-level sentencing enhancement under U.S.S.G. § 2K2.1(b)(6)(B)

In United States v. Lesandro Perez,  https://www2.ca3.uscourts.gov/opinarch/191469p.pdf, Appeal No. 19-1469, --- F.4th ---, 2021 WL 3087672 (3d Cir. July 22, 2021), the Third Circuit created a rebuttable presumption that a firearm is used or possessed “in connection with” a drug-trafficking offense if the firearm is found in close proximity to drugs or related items, justifying a four-level sentencing enhancement under U.S.S.G. § 2K2.1(b)(6)(B).

Perez sold two firearms to an undercover officer. During the transaction, the undercover officer observed drugs and drug paraphernalia. Perez pled guilty to sales of guns and drugs. At sentencing, the District Court applied the four-level enhancement in U.S.S.G. § 2K2.1(b)(6)(B), which applies when a defendant “used or possessed any firearm…in connection with another felony offense.” When the other felony offense is drug trafficking, Note 14(B) creates a special rule that the enhancement applies as long as the firearm “is found in close proximity to drugs, drug-manufacturing materials, or drug paraphernalia.” § 2K2.1 cmt. n.14(B). The enhancement raised the guideline range from 84 to 105 months to 121 to 151 months.

Perez argued the enhancement did not apply because he possessed the firearms to sell them, not in connection with a drug-trafficking offense. He further argued that 2K2.1(b)(6)(B) itself is unambiguous and therefore should be controlling rather than the Guidelines’ commentary, Note 14(B). The Third Circuit reversed because the District Court was under the false impression that the enhancement was automatic, but disagreed that the guideline was unambiguous.

First, the Third Circuit decided the commentary here deserved deference. Under Kisor v. Wilkie, 139 S. Ct. 2400 (2019), a court should afford deference to the Guidelines’ Commentary when (1) the Guidelines’ language is ambiguous, (2) the Commentary itself is reasonable, and (3) the character and context of the Commentary entitle it to controlling weight.

(1)   Here, the phrase “in connection with” is notable for its vagueness: the Sentencing Commission added Note 14B precisely to address a growing conflict among circuits about whether that language encompassed cases in which the firearm’s presence was merely accidental or coincidental.

(2)   Note 14B was reasonable based on Supreme Court and Third Circuit precedence. In Smith v. United States, 508 U.S. 223 (1993), the Supreme Court clarified that the defendant’s use of the firearm must have some purpose or effect with respect to the drug trafficking crime; its presence or involvement cannot be the result of accident or coincidence. In United States v. Loney, 219 F.3d 281 (3d Cir. 2000), the Third Circuit held that the “in connection with” requirement would exclude situations in which “the presence of the gun was merely ‘accidental,’ had no ‘purpose or effect with respect to’ [the defendant’s] drug offense, or did not ‘facilitate or have the potential of facilitating’ [the defendant’s] drug dealing.”  In United States v. West, 643 F.3d 102 (3d Cir. 2011), the Third Circuit held that “in a simple possession case, the sentencing court must make a specific finding that the firearm facilitated or had the potential of facilitating possession of the drugs.” 

      Thus, “physical proximity alone may be insufficient in some cases” to establish that the firearm had the potential to facilitate drug activity and (2) the Guideline excludes those cases in which the firearm’s presence is “the result of accident or coincidence.” The Court concluded that the Note incorporates certain “boundaries” laid out in Smith, and those boundaries require a relationship between drug-trafficking activities and firearms under Loney. Hence the enhancement does not apply merely because Perez possessed firearms and drugs together in the same room.

Then the Court created a rebuttable presumption that a firearm is used or possessed “in connection with” a drug-trafficking offense if the firearm is found in close proximity to drugs or related items. A defendant may present evidence that the firearm had no relationship to drug-related activities and thus did not have the potential to facilitate a drug-trafficking offense. This Court rejected dicta from other Circuits that the enhancement “necessarily” or “automatically” applies when drugs and guns are physically near each other, as contrary to Loney and an  impermissible “expan[sion of] the substantive law set forth in the [G]uidelines themselves.” Here, because Perez was not given a chance to prove that the firearm’s presence was mere accident or coincidence (rebutting the presumption), the Third Circuit vacated the District Court’s judgment and sentence and remanded for the Court to reconsider whether there was a relationship between Perez’s firearms and his drug-trafficking activities.

Judge Bibas issued a concurring opinion that Note14B is invalid as written because it substitutes proximity for a connection to a drug crime. He criticized the majority for “misreading the Note to create a rebuttable presumption and then defers to its own creation.” The rebuttable presumption creates problems by putting the burden of proof on the defendant, forcing him to disprove a connection between the gun and the drugs. (1) The burden is on the government to prove, by preponderance of the evidence, that possession of gun was “in connection with” drug offense, (2) the “in connection with” element may be proved by way of inference, but (3) advancing a valid inference is part of the government's burden of proof.

 

  

Sixty-five-year sentence for a juvenile convicted under RICO predicated on murder upheld/ Upon resentencing, the “sentence-package doctrine” must be clearly raised or risk being waived 

 

United States v. Corey Grant, ___F.3d___, No. 16-3820 (8/16/2021)

 

 

In the wake of last term’s Supreme Court holding that neither Miller v. Alabama, 567 U.S. 460 (2102) nor Montgomery v. Louisiana, 577 U.S. 190 (2016) requires a court sentencing a juvenile to a sentence of less than life without parole to consider a  particular set of factors regarding the juvenile, the Third Circuit held,  “The Miller  bar on mandatory LWOP sentencing regimes is a prophylactic that entitles a juvenile homicide offender to a certain sentencing process, but not a particular sentencing outcome—a result that follows from the Supreme Court’s decision in Jones v. Mississippi, 593 U.S. --, 141 S. Ct. 1307 (2021).”

 

Mr. Jones joined a drug gang at the age of thirteen and soon became one of its enforcers. He was arrested twice when he was fifteen and released about a year later. Not long after that, he participated in shootings of two men who worked sold drugs in Mr. Jones’ gang’s territory. One of them died. Mr. Jones was soon indicted for racketeering and drug violations. He was found guilty, the predicate for one of the RICO convictions being the murder. (He was acquitted of another RICO predicate murder, and the jury hung on a third.)  The sentencing guidelines, which in 1992 were mandatory, required he receive a life sentence. He also received concurrent and consecutive sentences on other counts. 

 

Mr. Jones was allowed to file a second §2241 petition following Miller, which invalidated mandatory life sentences for juveniles. When finally resentenced, the District Court found “that Grant’s upbringing, debilitating characteristics of youth, and the post-conviction record showed that he was “not that rarest [] exception referenced in Miller, where the lifetime without parole is appropriate.”  It imposed concurrent sixty-year sentences on all charges but for his 18 U.S.C. §924(c) conviction, for which he received a consecutive five years. (The district court inadvertently increased a forty-year concurrent sentence to sixty years.) With good time, Mr. Jones is eligible for release when he reaches 72 in 2045. 

 

He appealed. Mr. Jones did not allege that his sentence was disproportionate or unreasonable under the 8^th Amendment, and the Government conceded that the sentence could be de facto life without parole. The Government also did not say that Mr. Jones deserved a life sentence. 

 

The Court concluded that neither Miller nor Montgomery (which made Miller retroactive to cases pending on direct or collateral review) granted any right to juvenile offenders other than the guarantee that no conviction would automatically lead to a sentence of life without parole. Especially following Jones, which rejected an argument that any particular set of factors listed in Miller had to be applied before sentencing a juvenile whose range of sentences potentially included life without parole, the en banc panel found that the “[Supreme] Court has guaranteed to juvenile homicide offenders only a sentencing procedure in which the sentencer must weigh youth as a mitigating factor.” As the district court considered Mr. Grant’s youth at the time of his offense, the sixty-year sentence was not improper.

 

The Court also rejected Mr. Grant’s contention that according to the “sentencing-package doctrine,” he was entitled to resentencing on the concurrent forty-year sentences imposed with the life sentence. The Court found he had waived the issue by not clearly raising it before the District Court. The sentencing-package doctrine recognizes “a strong likelihood that the district court will craft a disposition in which the sentences on the various counts form part of an over-all plan.” Mr. Grant conceded he did not clearly raised the issue below. Plain-error did not apply, as the drug sentences were not affected by Miller. (The Court did vacate the District Court’s erroneous increase of the forty-year sentence to sixty years and remanded with instructions to correct the error.) 

 

Not satisfied with affirming the District Court, Judge Hardiman, joined by Judges Jordan, Bibas, and Porter, wrote to complain about what they saw the displacement of traditional 8th Amendment jurisprudence by the yardstick of “evolving standards of decency.” He wrote, “That approach displaces the text of the Eighth Amendment in favor of a nebulous test. And it requires courts to divine the prevailing moral sentiment at the time of sentencing, which has led to the different approaches to the Eighth Amendment issue in this case. I hope to explain how that confusion made its way into our case law—and why it leaves courts without adequate guidance.” His explanation followed. 

 

Judge Greenaway, joined by Judges Restrepo and Krause, joined only the judgment of the Court. He wrote briefly to state his belief that Jones did not affect what he believed was a requirement that courts sentencing juveniles consider whether they would or should be released in time to have a meaningful life. He also thought that the sentencing-package issue had been adequately preserved and should always apply to vacated sentences, which had occurred in non-precedential decisions.

70,000 images of child pornography will not be suppressed.

The government prevailed last week in the Third Circuit on an interlocutory appeal of a suppression grant.

In United States v. Caesar, No. 19-3961, 2021 WL 2559471 (3d Cir. June 23, 2021), the police searched the defendant’s home pursuant to a search warrant and recovered child pornography.

Litigating a motion to suppress, the defendant challenged the search warrant affidavit, which alleged not child pornography crimes, but sexual abuse of children—different offenses that are not automatically linked.  See Virgin Islands v. John, 654 F.3d 412 (3d Cir. 2011); United States v. Zimmerman, 277 F.3d 426 (3d Cir. 2002).

The Third Circuit rejected the defense argument.  Factually distinguishing the defense-favorable precedent, the Court noted three averments in the affidavit that strengthened the case to search the home for child pornography: (1) that the defendant committed prolonged child sexual abuse in his home; (2) that he used a computer to solicit images of partially-clothed children; and (3) that the experienced affiant knew of a link between child pornography crimes and child sexual abuse.

On these facts, it was “a close question” whether there was probable cause to search the home for child pornography.  The Third Circuit declined to reach the issue.  Instead, it reversed the grant of suppression under the good faith exception to the Fourth Amendment exclusionary rule.

Bottom line: Probable cause or not, the officers were not entirely unreasonable in relying on the search warrant.

Conviction and sentence for embezzlement upheld over challenges for speedy trial violation, and to evidentiary rulings, jury instructions, and loss calculation.

In United States v. David T. Shulick, 994 F.3d 123 (3d Cir., April 13, 2021), the Third Circuit affirmed convictions and sentence for embezzling funds from a federally funded program, conspiracy, bank fraud, and making false statements. Shulick operated a for-profit education company that, among other things, contracted with the School District of Philadelphia to manage its Southwest School, which served at-risk students. Shulick received $2 million to put in place specific services: 6 teachers with set salaries and benefits, security workers, and counselors. Shulick only spent $1.186, did not provide these full services or positions, and directed the money instead to pay off liabilities for other businesses. He was convicted by a jury and appealed on speedy trial grounds, errors in evidentiary rulings, faulty jury instructions, and sentencing miscalculations. The Third Circuit Court rejected all these challenges:

 I. There was no statutory speedy trial violation. The Speedy Trial Act’s requirement that trial begin within 70 day of indictment or initial appearance can be extended where a judge grants an “ends of justice” continuance because a “case is so unusual or complex.” See 18 U.S.C. §3161(h)(7)(A). Here, the case was complex: the prosecution stemmed from a multi-year investigation involving millions of pages of documents. Shulick alleged that even if the case was complex, the government made a mistake during discovery (untimely production due to misfiling under the wrong case number), and thus this error should categorically bar them from an ends-justice continuance because it constituted a lack of diligent preparation. Where it was only a one-time administration mishap that the government had appropriately remedied, Shulick failed to meet his burden of showing that the government’s error rose to the level of “lack of diligent preparation.” As the court emphasized, the “Speedy Trial Act was not intended to provide defendants with tactics for ensnaring the courts into situations where charges will have to be dismissed on technicalities.”

 There was also no Sixth Amendment speedy trial violation. Shulick failed to establish any of the four factors - the length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant - led to a violation.

II. The evidentiary rulings were not erroneous. The District Court rightfully excluded an agency clause in the contract and other irrelevant evidence. While the contract explicitly said the “contractor does not function as an agent of the School District,” the Court ruled this clause irrelevant because the parties “cannot bind the federal government in a criminal trial by simply saying they’re not agents of one another.” Indeed, Shulick was given significant managerial control over the administration of the school, which clearly showed he was an agent of the organization receiving federal funds under §666(a)(1)(A). Further, the district court properly excluded certain expert testimony because he was an untimely-disclosed expert witness.

 III. The District Court did not err in instructing the jury that an intentional misapplication within the meaning of § 666(a)(1)(A) can be found even if the misuse of funds still benefited the victim, in this case the School District of Philadelphia. A federal program theft occurs when the defendant “embezzles, steals, obtains by fraud, or otherwise without authority knowingly converts to the use of any person other than the rightful owner or intentionally misapplies, property.” 18 U.S.C. § 666(a)(1)(A). Consistent with sister circuits, the Court held that the disjunctive “or” shows that “intentionally misapplies” is a separate way of satisfying the statute, apart from the previous limiting phrase regarding conversion. If Congress meant for the limiting conditions to apply to “intentionally misapplies,” it would have included parallel language after that phrase and so “intentionally misapplies” is meant to be interpreted broadly.

 IV. The District Court rightfully found Shulick did not prove he was entitled to the safe harbor provision, excluding from criminal liability “bona fide salary, wages, fees, or other compensation paid, or expenses paid or reimbursed, in the usual course of business.” A defendant is entitled to an instruction on a theory of defense “if (1) he proposes a correct statement of the law; (2) his theory is supported by the evidence; (3) the theory of defense is not part of the charge; and (4) the failure to include an instruction of the defendant's theory would deny him a fair trial.” Shulick merely asserted, without providing any evidence, that he exceeded the budget for some items, and some of his spending benefited the school.

 V. The District Court properly calculated the fraud loss by taking the difference between the amount that the defendant spent on various budgeted items and the amount that the budget required him to spend. Although the defendant claims that he exceeded the budget for some items, the defendant was not entitled to offsets against the district court's calculation of fraud loss for the expenses claimed because he did not provide enough evidence to show that the additional money was spent for the benefit of the school.

 VI. Finally, the District Court did not err in supplementing the record to include a binder relied upon by the defendant’s accounting expert. While the binder was inadvertently omitted from the record, the binder was not new evidence and was material to the case, as it contained information supporting the fraud loss calculation.